Property Claims
Cases
Peakin v Peakin
Exchequer Division.
26 February 1895
[1895] 29 I.L.T.R 38
Palles C.B., Andrews J.
Murphy, J.
Supposing a man through charity gave money and provisions, does the Statute of Limitations not run? Where it is a tenancy at will the statute begins to run after 12 months. I decide in favour of possession, as the plaintiff has failed to show me any authority as to whether there was anything in the case to prevent the statute from running.
February 26, 1895.—The plaintiff applied to the Divisional Court that the judgment entered for the defendants by Mr. Justice Murphy should be set aside, and a judgment entered for the plaintiff, and for possession, and for costs of both actions, or in the alternative for a new trial.
The Court (Palles, C.B., and Andrews, J.), unanimously reversed the decision of Mr. Justice Murphy, and entered judgment for the plaintiff for possession, with costs of action and new trial motion, holding that the possession of A. P. and B. P. was the possession of W. P., and that they were in the house as the guests of their brother, W. P., and that consequently no tenancy of any kind existed between the parties, and therefore the Statute of Limitations did not run.
Gleeson v. Feehan
[1997] 1 I.L.R.M. 52efore considering the authorities, I would make two preliminary observations. In the first place, I think some confusion may be caused by describing a person in the position of Edmond as ‘a trespasser’. If the submissions advanced on behalf of the defendants are well founded, it is true to say that he was, in the strictly legal sense, a trespasser. Many people would instinctively think of a trespasser as a person who takes possession of land to which he has no right. It would seem inappropriate in every day language to describe a member of a family who goes on living in the family home after the death of his parents as a ‘trespasser’. If, however, a person has remained in what the law has come to call ‘adverse possession’ of land for the specified period prescribed by the relevant statute of limitations and thereby becomes the legal owner of the land, it may well be that, in strict legal theory, his possession throughout that period can also be described as that of ‘a trespasser’, however incongruous that description may appear to be when applied to a child who stays on in possession of the family home which everyone else has left.
In the second place, while there has been much debate in this case as to the nature of the interest, if any, of the next-of-kin of James Dwyer in these lands after his death, it does not seem to me to be axiomatic that the existence of a beneficial interest in the property, if such there was, ipso facto carried with it a right to possession of the land.
In considering the authorities, it will probably be convenient to start with Martin v. Kearney (1902) 36 ILTR 117, since it is to some extent the sheet anchor of the plaintiff’s case. In that case, the plaintiff was one of four children who were in possession of a farm after their father’s death. The other three having died before the proceedings were instituted, the plaintiff claimed to be entitled to the entire farm as a surviving joint tenant. The defendant was his sister who had left the farm on her marriage before the father’s death and had returned to it with her son at the request of the plaintiff’s brother shortly before his death.
The County Court judge having given a decree in favour of the plaintiff, the appeal came on before Palles CB. He held that the plaintiff was entitled to no more than a one fourth share in the farm as tenant in common and was not entitled to an ejectment decree against his sister. He, accordingly, converted the ejectment civil bill into an equity civil bill and made an order declaring the plaintiff entitled to one undivided fourth part in the farm.
In the course of his judgment, which appears to have been ex tempore , the Chief Baron said that he was not prepared to follow a decision of Ross J (as he then was) in Coyle v. McFadden [1901] 1 IR 298 to the effect that next-of-kin remaining on in possession in such circumstances acquired a possessory title as joint tenants. The report continues:
Palles CB … held that the next-of-kin remaining in possession without any administration having been taken out to the deceased intestate were equitable tenants in common under a good equitable title, and were not trespassers, and that, when the statute of limitations ran, their equitable tenancy in common became a legal estate as tenants in common ….
Counsel for the defendants had relied on a decision of the Irish Court of Appeal in Gilsenan v. Tevlin [1902] 1 IR 514, which had just been decided. In that case, the court had held that a next-of-kin of the owner of land who died intestate has a specific interest against which a judgment mortgage may be registered. There was little, if any, discussion of the applicable principles of law in the judgments of O’Brien LCJ and Fitzgibbon LJ since they considered themselves bound by the decision of the House of Lords in Cooper v. Cooper (1874) 7 HL 53 to hold that the next-of-kin of an owner of land who dies intestate have a clear and tangible interest in the land from the time of his death. Fitzgibbon LJ accepted that, to the extent that this was the effect of the decision in Cooper v. Cooper, it was irreconcilable with the later decision of the House of Lords in Lord Sudeley v. Attorney General [1897] AC 11. However, he was also of the view that, in accordance with the doctrine of stare decisis as it was then understood, the House of Lords was bound by its own decisions and that, confronted with a choice between two apparently conflicting decisions, the Irish Court of Appeal should follow the earlier one.
It is, accordingly, clear that the view of the law taken by Palles CB in Martin v. Kearney, which led him to conclude that the next-of-kin remaining in possession were equitable tenants in common and were not trespassers, derives ultimately from the decision in Cooper v. Cooper. Having regard to the disapproval which some aspects of that decision have subsequently evoked in England and elsewhere, it must be considered with some care.
The facts were as follows. A testator gave a property called Pain’s Hill in Surrey, together with personal property, to trustees on trust, after his widow’s death, to sell, and hold the proceeds, with his other property, in trust for any one of his children in such form or manner as his widow, before a certain fixed period, should appoint. He died, leaving three sons, W.H., R.E. and F.J. Before the expiration of the fixed period, the widow executed a deed by which, after disposing of other property, she directed the proceeds of Pain’s Hill to be divided equally among the three sons. The deed reserved to her a power of revocation. She afterwards made a will, apparently under the impression that she still had power to dispose of Pain’s Hill, under which she gave that property to W.H., the eldest son, and then by different successive codicils, gave benefits to the *531 other two sons and a special legacy to each of the two children of R.E. (the only one of the three sons of the original testator who had married). R.E. died before his mother, intestate. On his mother’s death a suit was instituted in which it was declared that, so far as the estate of Pain’s Hill was concerned, her will was inoperative, since it could only speak from the date of her death and therefore purportedly came into operation long after the expiration of the period fixed for the making of the appointment. The eldest son, W.H., then filed a bill to compel the two children of R.E. and also his youngest brother, F.J., to elect between their claims under the deed of appointment and under the will and codicils. F.J. submitted; the two children of R.E. resisted.
This would have seemed a classic case for the application of the equitable doctrine of election, under which the law does not permit a beneficiary to claim a benefit under the will and at the same time to defeat the intention of the testator in regard to other gifts contained in that will. One of the arguments advanced on behalf of the children of R.E., however, was to the effect that the doctrine of election did not apply where the benefit allegedly taken under the will was not a defined or tangible interest in property, but was merely a right to have the estate administered in due course of law and to be paid whatever the beneficiary’s share of the residue might be after the payment of debts.
It is not surprising that this singularly unmeritorious argument was rejected in the House of Lords since, as the Lord Chancellor, Lord Cairns, pointed out, it was perfectly clear that, whatever the nature of the right of a residuary legatee or next-of-kin might be, it was beyond argument that it was a right which was capable of being released or assigned. (It has never been disputed that the rights of the residuary legatee or next-of-kin to a share in the balance of the estate is a chose in action capable of being assigned.) The children, in that case, were accordingly in a position to abandon the benefit they took under the will and rely on their share of the proceeds of the sale of Pain’s Hill by virtue of the deed of appointment. Alternatively, they could release their interest under the deed of appointment and take the benefits under the will. They could not, however, both approbate and reprobate the will.
In arriving at this conclusion, Lord Cairns undoubtedly expressed a view, which was not dissented from by any of the other law lords, that the interest of the next-of-kin in the estate of an intestate is a defined and tangible interest in specified property. The relevant passage in his speech (at pp. 64–66) is as follows:
My Lords, it was very much pressed on your Lordships in the extremely able argument we heard at the bar from the counsel for the appellants, that the interest of a next-of-kin in the estate of an intestate is an undefined and intangible interest, that it is a right merely to have the estate converted into money and to receive a payment in money after the debts and expenses are discharged. My Lords, no doubt the right of a next-of-kin is a right, which can only be asserted by calling upon the administrator to perform his duty, and the performance of the duty of the administrator may require the conversion of the estate into money for the purpose of paying debts and legatees. But I apprehend that the rule of law, or the rule laid down by the statute, which requires the conversion of an intestate’s estate into money, is a rule introduced simply for the benefit of creditors and for the facility of division. For the benefit of creditors, and for the facility of division among the next-of-kin, the estate is to be turned into money, but as regards substantial proprietorship the right of the next-of-kin remains clear to every item forming the personal estate of the intestate, subject only to those paramount claims of creditors . [emphasis added.]
In Lord Sudeley v. Attorney General, the issue was as to whether probate duty was payable on the value of mortgages of property in New Zealand. The testator had left one quarter of his residuary estate to his widow and had not specifically disposed in the will of the mortgages. His widow died domiciled in England before the administration of her husband’s estate had been completed. It was claimed by her executors that the value of these mortgages should not be taken into account for the purpose of ascertaining the duty, but it was unanimously held in the House of Lords that the widow had not, so long as the residue was unascertained, a right to claim a share of any particular assets of the estate in specie: she could only call on the executors to administer in due course and claim her share of the residue when finally ascertained. Lord Herschell said:
I do not think that they [the executors] have any estate, right, or interest, legal or equitable in these New Zealand mortgages so as to make them an asset of her estate.
Cooper v. Cooper is not referred to in any of the speeches and was, it would seem, not cited in the course of the arguments. Lord Sudeley’s case was also applied by the House of Lords in Doctor Barnardo’s Homes v. Special Income Tax Commissioners [1921] 2 AC 1. In Vanneck v. Benham [1917] 1 Ch 60, Younger J sought to reconcile the apparent conflict between the two earlier decisions of the House of Lords in this passage:
It is not difficult to arrive at the true distinction between the two lines of authority which at first sight may seem to be in conflict. The distinction, it appears to me, is that an interest in an intestate’s estate is sufficiently specific to raise a case of election, representing as that interest does all the money’s worth of the property comprised therein, but that such interest is not sufficiently specific apart from agreement by the next-of-kin, whether one or more than one, to enable anyone of the next-of-kin to say to the administrator ‘This or that thing is mine. Hand it over to me’.
That explanation was approved by Evershed MR in In re Cunliffe-Owen [1953] 1 Ch 545.
The divergent lines of authority were also referred to by Kingsmill Moore J giving the judgment of this Court in In re Cuff Knox deceased [1963] IR 263. That was another revenue case in which the revenue, relying on Lord Sudeley’s case, argued that estate duty was payable in respect of a trust fund settled by an Irish trust instrument. The person in respect of whose death the claim arose was domiciled in the Channel Islands at the time of his death, but it was argued on behalf of the revenue that he had no interest in specie in the specific investments constituting the trust fund, but had only a personal right of action to call upon the trustee to execute the trust declared by the relevant instruments and, if necessary, to enforce that request by legal action. The locality of such a right, it was contended, was that of the proper law of the instruments creating the trust and would in the circumstances be Irish.
Kingsmill Moore J said that he was not prepared to extend Lord Sudeley’s case beyond what it actually decided. Having referred to the fact that the judges in Gilsenan v. Tevlin had pointed out the impossibility of reconciling some of the reasons given in that case with the judgments in Cooper v. Cooper and to the explanation of the two decisions by Younger J in Vanneck v. Benham, he went on:
So explained, Sudeley’s case is not applicable to an ascertained residue, certainly where there is only one residuary legatee; nor is it applicable to an ascertained trust fund, certainly when there is only one beneficiary entitled; and this is so, as will appear subsequently, even when there are charges on the fund.
That case, accordingly, although clearly authority for the proposition that Lord Sudeley’s case does not apply to an ascertained residue, at least where there is only one residuary legatee, does not assist in determining the question as to whether the general statements of the law by Lord Cairns in Cooper v. Cooper represent the law in Ireland today.
In England, however, the conflict between Cooper v. Cooper and Lord Sudeley’s case was authoritatively resolved by the decision of the Judicial Committee of the Privy Council in Commissioner of Stamp Duties (Queensland) v. Livingston [1965] AC 694. The facts were somewhat similar to those in Lord Sudeley’s case. A testator, who died domiciled in New South Wales, by his will, which was proved in New South Wales, gave his real estate and the residue of his personal estate to his executors and trustees, of whom his widow was one, on trust as to one third thereof for his widow absolutely. His assets consisted of real and personal estate in both New South Wales and Queensland. The widow died intestate, domiciled and resident in New South Wales. The testator’s estate was at the date of her death still in the course of administration, no clear residue had been ascertained, and consequently no final balance payable or attributable to the shares of residuary beneficiaries had been determined. On a claim by the appellant, the Commissioner of Stamp Duties (Queensland), under the relevant revenue legislation that the respondent, as administrator of the estate of the widow, or, alternatively, as one of her next-of-kin, was liable to pay duty in respect of her share of the Queensland assets on the ground that her death conferred a succession on those becoming entitled to her estate, it was held, inter alia, that no beneficial interest in any item of the testator’s property in Queensland, real or personal, belonged to his widow at the date of her death and duty was therefore not exigible.
Giving the advice of the Judicial Committee, Viscount Radcliffe, having cited the relevant passages from Lord Cairns’ speech in Cooper v. Cooper went on:
Cooper v. Cooper certainly was not cited during the argument of Sudeley v. Attorney General and it has apparently been suggested that, if it had been, the law as laid down in that case would somehow have been stated in a different or qualified form. Their Lordships can give no encouragement at all to this speculation. The members of the House who decided Sudeley were dealing with a branch of the law that was familiar and well established and they were dealing with it with the precision that they regarded as being required by the particular issue that was before them. The law as they there stated it was reaffirmed by the House in the same terms in Doctor Barnardo’s Homes v. Special Income Tax Commissioners.
Vicount Radcliffe added:
In their Lordships’ opinion the truth of the matter is that Lord Cairns’ speech in Cooper v. Cooper cannot possibly be recognised today as containing an authoritative statement of the rights of next-of-kin or residuary legatee in an unadministered estate. His language is picturesque but inexact; and while it was no doubt sufficient to enforce the point with which he was concerned to deal, a beneficiary’s right or duty of election, and the decision of the case remains an authority on that point, it would be idle to try to set it up as an exposition of the general law in opposition to what was said and laid down in the Sudeley and Barnardo cases.
It will be obvious from this necessarily abridged summary of the authorities that the decision of the Irish Court of Appeal in Gilsenan v. Tevlin, on which Palles CB presumably based his terse judgment in Martin v. Kearney, must today be regarded as resting on, at the very least, somewhat insecure foundations. Martin v. Kearney was followed by Kenny J in Morteshed v. Morteshed (1902) 36 ILTR 142 in preference to Coyle v. McFadden and by O’Connor MR in Re Christie [1917] 1 IR 17. In Smith v. Savage [1906] 1 IR 469, Barton J, while adopting the view that the next-of-kin who remained on in possession did so as equitable tenants in common, held that they acquired title to the shares of the absent next-of-kin as joint tenants.
In Maher v. Maher [1987] ILRM 582, O’Hanlon J, while acknowledging that the weight of Irish authority was in favour of the view that the next-of-kin remaining in possession should be regarded as occupiers as tenants in common and not as joint tenants, said that he found the argument to the contrary more persuasive. He summed up his views as follows:
From the date of death of an intestate the next-of-kin have no right to take possession of any part of his assets until they come to be vested in them by the personal representative. Under s. 13 of the Administration of Estates Act 1959 it was provided that where a person died intestate his real and personal estate until administration was granted in respect thereof should vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the ordinary.
Under s. 22 of the same Act it was provided that on the death of a sole registered full owner of land the personal representative of the deceased owner should alone be recognised by the registering authority as having any rights in respect of the land, until an assent in the prescribed form was made available by the personal representative for the purpose of securing the registration of the persons named in such assent as owner.
It appears to me that if some of the next-of-kin take possession or remain on in possession of lands of an intestate to the exclusion of others, their possession of the entire interest in the lands is adverse to the claims of the personal representative and of the other next-of-kin and that they should not be regarded as occupying the lands in a different character as to the shares claimed by them in their capacity as next-of-kin and as to the shares of the other next-of-kin and the entitlement of the personal representative which they are in the process of extinguishing. I consider that their occupation was as joint tenants in the entire lands and every interest therein.
It is safe to assume that O’Hanlon J would have treated that view as reinforced by the opinion of Viscount Radcliffe in Livingston which, however, does not appear to have been cited in that case.
I should also refer to the Northern Ireland decision of Kavanagh v. Best [1971] NI 89. In that case, the issue was as to whether a judgment mortgage was well charged on the defendant’s interest in a property which had been specifically devised to her. The executors of the will had let her into possession and agreed to assent to the devise but no actual assent was executed. The plaintiff relied on Gilsenan v. Tevlin, and, in the course of his judgment, Gibson J considers the divergent lines of authority and the resolution of the issue in England by Livingston. However, he was also of the view that s. 2(3) of the Administration of Estates Act (Northern Ireland) 1955, which provided in terms similar to s. 7(1) of our Administration of Estates Act 1959 and s. 10(3) of the Succession Act 1965, that the executors are trustees for the persons by law entitled to the real and personal estate, meant that the executors in that case held the premises as express trustees for the defendant and the creditors of the estate. In his view, it was not necessary, in order that a judgment mortgage might be registered against an equitable interest of a person, that the interest should be exclusive.
The relevant statutory provisions must next be considered. These were lands to which Part IV of the Local Registration of Title (Ireland) Act 1891 applied when James Dwyer died in 1937. S. 84(1) provided that land to which that part of the Act applied devolved to, and became vested in, the personal representative as if it were a chattel real. S. 86(1) then provided that:
subject to the powers, rights, duties and liabilities hereinafter mentioned, the personal representative of a deceased person shall hold such land as trustees for the persons by law beneficially entitled thereto, and those persons shall, subject to the provisions of this Act, have the same power of requiring a transfer thereof as they have of requiring a transfer of personal estate.
As already noted, similar provisions were enacted in 1959 in the case of all freehold land and the provisions were re-enacted by s. 10(3) of the Succession Act 1965 which was applicable to all the real and personal estate of the deceased person.
S. 15 of the Probate and Letters of Administration (Ireland) Act 1859, as amended, provided that:
From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall be vested in (the President of the High Court) for the time being, in the same manner and to the same extent as heretofore they vested in the ordinary.
A similar provision was contained in s. 13 of the Administration of Estates Act 1959 and in s. 13 of the Succession Act 1965.
The first question that arises in this case is, accordingly, as to whether the lands comprised in Folios 11057 and 3371 of the Register of Freeholders, County Tipperary, of which James Dwyer was the registered owner, vested in the six children of James Dwyer as equitable tenants in common, entitled to one undivided sixth share each, after the deaths of James and Mary Dwyer.
It is obvious that, using the word in a loose and imprecise sense, the next-of-kin of the intestate owner of property have at least an ‘interest’ in ensuring that the administration of his property is carried out in accordance with law by the administrator. They have indeed more than a mere ‘interest’ of that nature: they have a right, in the nature of a chose in action, to payment to them of the balance of the estate after the debts have been discharged, a right which can be enforced against the personal representative. It is also not in dispute that, whatever the legal nature may be of the estate vested in an executor or administrator, he does not hold the property for his own benefit: to that extent, at least, he is properly regarded as a trustee who must perform the duties of his office, not in his own interest, but in the interests of those who are ultimately entitled to the deceased’s property, whether as beneficiaries or as creditors.
It is, however, clearly contrary to elementary legal principles to treat the persons entitled to the residuary estate of a deceased person as being the owners in equity of specific items forming part of that residue, until such time as the extent of the balance has been ascertained and the executor is in a position either to vest the proceeds of sale of the property comprised in the residue in the residuary legatees or, where appropriate, to vest individual property in specie in an individual residuary legatee. Precisely the same considerations apply to the rights of a next-of-kin in relation to the estate of a person who dies intestate. Until such time as the extent of the residue after payment of debts available to the beneficiaries is ascertained, there is no basis in law for treating them as entitled in equity to any specific item forming part of the estate.
As Viscount Radcliffe pointed out in Livingston, it is no answer to these fundamental propositions to say that the beneficial interest in the property must reside somewhere during the course of administration and that, since the executor or administrator is not beneficially entitled, it must vest in the residuary legatee or (in a case such as the present) the next-of-kin. He disposes of that contention in this well known passage:
This dilemma is founded on a fallacy, for it assumes mistakenly that for all purposes and at every moment of time the law requires the separate existence of two different kinds of estate or interest in property, the legal and the equitable. There is no need to make this assumption. When the whole right of property is in a person, as it is in an executor, there is no need to distinguish between the legal and equitable interest in that property, any more than there is for the property of the full beneficial owner. What matters is that the court will control the executor in the use of his rights over assets that come to him in that capacity; but it will do it by the enforcement of remedies which do not involve the admission or recognition of equitable rights of property in those assets. Equity in fact calls into existence and protects equitable rights and interests in property only where their recognition has been found to be required in order to give effect to its doctrines.
It cannot, in my view, be plausibly contended that the provisions of s. 86(1) of the Local Registration of Title (Ireland) Act 1891 or the corresponding provisions in the Administration of Estates Act 1959 and the Succession Act have brought about a wholly different result in Ireland from that identified by the English decisions in Lord Sudeley’s case, Barnardo and Livingston. It is to be remembered that, prior to the 1891 Act and the 1959 Act, freehold land devolved upon the heir at law and did not vest in the personal representative.
When the legislature decided to change the law, in the case of compulsorily registrable freehold land in 1891 and all freehold land, whether registered or not, in 1959, it was perfectly logical that it should also provide that that land would vest in the personal representatives, not for their own benefit, but in trust for the persons entitled to the land, whether they should ultimately prove to be creditors or beneficiaries or both. There was no reason why the legislature should draw any distinction in this regard between the nature of the estate which vested in the personal representative in the case of personal property and in the case of real property and I do not believe that these provisions were intended to create any such distinction. It would appear, in any event, that identical provisions to those contained in the 1959 Act had been enacted for England by the Land Transfer Act 1897 and, if the English decisions after that date are not applicable in Ireland, it cannot be because of any difference in the statute law in the two jurisdictions.
To the extent that there is a conflict between the view of O’Hanlon J in this regard in Maher v. Maher and Gibson J in Kavanagh v. Best, I would, with respect, prefer the view adopted by O’Hanlon J. However, it should be pointed out that, while the observations of Gibson J as to the effect of the relevant legislation in Northern Ireland are not easy to reconcile with the approach to the law adopted in Livingston, he was dealing in that case with a specific devise of property and not with the position of a residuary legatee or the next-of-kin of an intestate owner. While it is not necessary to decide the point in the context of the present case, it may be that different considerations arise in such a case.
I am satisfied that the decision of the Court of Appeal in Gilsenan v. Tevlin cannot now be regarded as correctly stating the law in Ireland. It follows that the decision in Martin v. Kearney and the subsequent cases in which it has been followed must be overruled. The possession of both Edmond Dwyer and Jimmy Dwyer of these lands was at all times adverse to the title of the true owner, the President of the High Court, in whom the entire estate in the land was vested pending the raising of representation. That view is not only in accord with the law as stated in Lord Sudeley’s case, Doctor Barnardo’s Homes and Livingston: it also accords with the views of the majority of the Australian High Court in Livingston and of the Supreme Court of Canada in In re Steed and Raeburn Estates, Minister of National Revenue v. Fitzgerald [1949] SCR 453. This is how the law is also stated in such well known English textbooks as Snell’s Equity , 29th ed., 41-2; Underhill and Hayton on The Law of Trusts and Trustees , 15th ed., 13–14 and Pettit on Equity and the Law of Trusts , 7th ed., 35-6. It is also supported by the leading Australian textbook, Meagher, Gummow and Lehane on Equity: Doctrines and Remedies , 3rd ed., paragraphs 404–412 where Livingston and its implications, in particular, are subjected to a characteristically close analysis. It is the view of the law I took at first instance in Moloney v. AIB [1986] IR 67 and Mohan v. Roche [1991] 1 IR 560 and I have not been persuaded by the arguments in this case that I was wrong. It is unnecessary, in the context of the present case, to decide whether the law as so stated has any application save to the unadministered residue or the unadministered estate of an intestate and whether, for example, it applies to a specific bequest or devise.
I have so far approached the case on the assumption, implicit in some at least of the authorities and in the submissions advanced on behalf of the plaintiff, that, if Edmond Dwyer was entitled to an undivided share in these lands as an equitable tenant in common prior to the raising of any representation, his possession in the land was as a necessary consequence not adverse to the title of the true owner. It is, however, difficult to see why this should be so. Even if, contrary to the authorities already cited, the next-of-kin of an intestate owner of land have an equitable interest in the land from the time of his death, it does not follow that they also have a right of possession which they can enforce against the personal representative. The right, if it exists, of any of the next-of-kin to possession of any part of the estate cannot depend on the purely fortuitous circumstance that he or she happens to be in possession of the particular property at the time of the intestate’s death. If the administrator were to institute ejectment proceedings against any other person in possession, it would be no defence for that person to say that he was entitled to remain in possession of the property until such time as the administrator put up the property for sale with a view to paying the debts of the deceased. There seems no reason in principle why any different law should apply to one of the next-of-kin who happens to be in possession at the date of death.
These fundamental legal realities have been somewhat obscured in Ireland by the traditional reluctance of small farmers in rural Ireland to make wills or raise representation. The traditional method of establishing the title to such holdings was by an application under s. 52 of the Local Registration of Title (Ireland) Act 1891 or s. 49 of the Registration of Title Act 1964 for registration on the basis of a title having been acquired by long possession. Hence, questions rarely arose as to the rights of personal representatives to recover possession in the circumstances I have mentioned.
If, however, the next-of-kin at the time of the intestate owner’s death are entitled to possession, not by concession, but as a matter of legal right, the same must apply to a house in a city or town. It cannot be seriously suggested that, in those cases where the owner of such a house happens to die intestate leaving, say, six children, only one of whom was living with him at the date of his death, all six are entitled to possession of the house. The personal representative may, of course, enter into some arrangement with one or more of the next-of-kin which renders their possession no longer adverse. It seems to me that, save where some licence from the true owner can be so proved or inferred, the possession of the next-of-kin must be considered as adverse.
It follows that the possession of both Edmond and Jimmy after the deaths of James and Mary Dwyer was adverse to the title of the true owner, i.e. the President of the High Court.
It is conceded on behalf of the plaintiff that, in the event of both Edmond and Jimmy being regarded as in adverse possession during the relevant period, they would have acquired title to the lands as joint tenants and not as tenants in common and that, accordingly, the interest of Edmond in the lands would have devolved by survivorship on his death on Jimmy.
It is clear from the decision of this Court in Perry v. Woodfarm Homes Ltd [1975] IR 104 that, at the expiration of the limitation period, there is nothing in the nature of a ‘parliamentary conveyance’ to the person in adverse possession. Since, however, under s. 24 of the Statute of Limitations 1957,
at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished,
it is also clear that, at the end of the limitation period, no persons other than Edmond and Jimmy were entitled to any interest in the land. While the distinction is somewhat academic, I do not think that it is a case of the shares of the absent next-of-kin having vested in Edmond and Jimmy at the end of the limitation period, since, for the reasons already given, they had no proprietary interest in the land, legal or equitable, pending the administration of the estate. What was extinguished at the end of the limitation period was the title of the President of the High Court to the land and his right to bring an action to recover the land. As a result, no estate or interest in the land could thereafter be vested in the next-of-kin, whether in or out of possession, by anyone. It need hardly be said that the grant of letters of administration intestate to the estate of James Dwyer on 14 January 1983 could not have the effect of reviving the title to the land which had been extinguished many years before by the operation of s. 24 of the 1957 Act.
I am satisfied that this conclusion is not in conflict with the decision of this court at an earlier stage in these proceedings, i.e. Gleeson v. Feehan [1993] 2 IR 113; [1991] ILRM 783. In that case, the only issue with which the court was concerned was whether the present proceedings were statute barred by virtue of s. 45 of the 1957 Act (as inserted by s. 126 of the Succession Act 1965) which requires an action in respect of any claim to the estate of a deceased person to be brought before the expiration of six years from the date when the right to receive the share or interest accrued. The court unanimously held that the relevant statutory period was s. 13(2)(a) of the 1957 Act, under which an action by a person to recover land must be brought before the expiration of twelve years from the date on which the right of action accrued to the person bringing the proceedings. The court did not have to resolve the issue which has now arisen, i.e. as to whether, assuming that the proceedings were not barred by s. 45 of the 1957 Act, the lands were assets forming part of the estate of Edmond Dwyer or whether his interest in the land was that of a joint tenant which devolved upon his death to the surviving joint tenant.
As I have already noted, Barton J in Smith v. Savage held that the next-of-kin in possession held their shares as tenants in common, but acquired the shares of the absent next-of-kin as joint tenants. This position was altered by s. 125 of the Succession Act 1965 which provided that those in possession were to be deemed to have acquired title as joint tenants (and not as tenants in common) as regards their own shares and also as regards the shares of the absent next-of-kin. This provision was not in force at the time Edmond and Jimmy acquired their title by possession and is, therefore, of no relevance in this case. It is, accordingly, unnecessary to determine whether the section proceeds upon the mistaken assumption that the next-of-kin in possession are entitled as of the date of death to an equitable interest in the property or whether it is simply directed to the nature of their co-ownership of the land at the stage when, by virtue of adverse possession, they have acquired title to the land.
It has been urged on behalf of the plaintiff that, having regard to the long standing practice in rural Ireland of not raising representation to the estates of deceased persons, particularly when they consist of small farms, the conclusions arrived at in this judgment would lead to considerable uncertainty as to the title to such properties. That is indeed an argument of last resort which I do not find in the least persuasive. The facts of the present case demonstrate that the state of the law, thought to have been established by Martin v. Kearney, is itself capable of producing injustice. I would, accordingly, answer the questions in the case stated as follows:
(a) No.
(b) Yes.
(a) Yes.
(b) No.
3. As joint tenants.
Feehan v. Leamy
High Court, May 29, 2000
Judgment of Finnegan J delivered the 29th day of May, 2000.
1. The plenary summons in this matter issued on the 28th February, 1978 and as then constituted the Plaintiff was Donal G. Feehan and the Defendant was Christopher Leamy. The reliefs claimed were an injunction directing the Defendant to vacate and to cease to trespass on the lands in Folio 28973 County Tipperary (“the lands”) and damages for trespass. On an application for interlocutory relief the Defendant filed an Affidavit sworn by him on the 26th May, 1978 in which he deposed that he had vacated the lands and that he did not intend to go onto the lands pending determination of the proceedings. The Defendant did vacate the lands and the Statement of Claim delivered on the 18th April, 1981 claims damages for trespass without seeking any injunctive relief. The Defence delivered on the 30th August, 1985 while not claiming any title in the lands on behalf of the Defendant sought to put in issue the Plaintiff’s title. A Reply was delivered on the 7th January, 1986. By Order of the Court dated 28th January, 1998 the original Defendant having died on the 4th January, 1987, the action was reconstituted with his personal representative, Patrick Leamy, being substituted as Defendant and the Second named Defendant, Roger Leamy, was added. An amended Statement of Claim was delivered on the 7th May, 1998 wherein it is pleaded that following the death of Christopher Leamy the Second named Defendant wrongfully trespassed upon the lands and kept cattle and sheep thereon: the Plaintiff claims damages and also injunctive relief against both Defendants restraining them from trespassing on the lands. An amended defence was delivered on the 9th October, 1998 in which the Second named Defendant claims to have gone into occupation of the lands in or about May 1981 and to have exclusively used the lands as his own from that date and upon that basis he claims to have acquired title to the lands by adverse possession and counterclaims for a declaration to that effect. By Order dated the 11th June, 1999 Donal G. Feehan having died and it appearing on Affidavit that the said Donal G. Feehan was a trustee of the lands for Michael Feehan. Michael Feehan was substituted as Plaintiff in place of Donal G. Feehan.
2. The delay in bringing this matter to hearing is explained by other proceedings which are relevant to the issues which arise in this action. Edmond Dwyer was registered as owner of the lands on the 16th June, 1953. He died on 2nd October, 1971. Following his death Jimmy Dwyer, the illegitimate son of Edmond Dwyer’s sister, remained in possession of the lands. In 1978 Jimmy Dwyer agreed to sell the lands to the Plaintiff. The purchase monies were paid on the 11th January, 1978 and the sale was completed by a Transfer to Donal G. Feehan dated 3rd March, 1981. The title of Donal G. Feehan was not registered until 12th March, 1997. The title of the Plaintiff was not registered until the 10th December, 1998. The title of Jimmy Dwyer was disputed by the next of kin of Edmond Dwyer who by their attorney, Francis P. Gleeson, issued proceedings against Donal G. Feehan in the Circuit Court by Civil Bill dated the 1st March, 1983. These proceedings were prosecuted as far as the Supreme Court: see 1993 2 I.R. 113 for judgment delivered on 20th June, 1991 and see 1997 1 ILRM 522 for judgment delivered on 21st November, 1996. The effect of the latter decision of the Supreme Court was that Jimmy Dwyer had indeed title to the lands and as a consequence Donal G. Feehan and the Plaintiff acquired good title from him. Thereafter registration of the title of Donal G. Feehan and the Plaintiff took place as hereinbefore mentioned. While these proceedings were pending disputing his title the Plaintiff took the view that he was unable to prosecute the present action.
3. To complete the background to the present claim it is necessary to look at the involvement of the Leamy family with the lands. Edmond Dwyer and Jimmy Dwyer were not particularly industrious farmers. From 1950 onwards the lands, together with other lands of the Dwyers, were rented to Christopher Leamy. In 1951 an arrangement was reached between the Dwyers and Christopher Leamy whereby in lieu of paying rent for the lands Christopher Leamy would pay rates on the lands and on other lands of the Dwyers. This situation continued until 1978 when Jimmy Dwyer sold the lands to the Plaintiff. The dispute as to the title of Jimmy Dwyer was in existence as early as the 9th March, 1978 as by letter of that date Christopher Leamy was requested by the next of kin of Edmond Dwyer to continue to graze the lands in their interest. As was cited above, Christopher Leamy and vacated the lands by the 26th May, 1978.
4. Where a person with good title brings an action for the recovery of lands and the Statute of Limitations is pleaded as a defence, the defendant must prove that the title holder, the plaintiff, has been dispossessed or has discontinued his possession of the lands in question for the statutory period. The onus here accordingly is on the Second named Defendant to establish his claim that he has acquired title by adverse possession.
5. The Second named Defendant gave evidence as follows. His father, Christopher Leamy, had vacated the lands at the time he swore the Affidavit of 26th May, 1978. Thereafter the lands remained unoccupied until December 1981. In the period December 1981 to March 1982 he, the Second named Defendant, kept some twenty to thirty cattle on the lands and provided fodder for them there. The lands were vacant from April 1982 to December 1982 as Christopher Leamy was growing corn on his own lands which adjoined the lands to the East and to the West and as the fences were in poor condition it was not possible to keep cattle on these lands. In the period December 1982 to April 1983, December 1983 to April 1984 and December 1984 to April 1985 he again kept cattle on the lands. In 1985 he took over the family farm from his father, Christopher Leamy and laid out the adjoining lands to the East and to the West of the lands in grass and accordingly he was able to keep cattle on the lands throughout the summer of 1985: on reflection he thought it might have been in 1984 that he first kept cattle on the lands throughout the summer. From the Second named Defendant’s title deeds it appears that he acquired lands to the East of the lands by transfer dated 2nd April, 1984 and lands to the West of the lands by transfer dated 30th January, 1985 and in the light of the dates of these Transfers I find on the balance of probability that the first year during which the Second named Defendant kept cattle on the land throughout the entire year was 1985. In 1985 he manured the lands. From 1985 onwards he kept cattle and sheep on the lands. He used the lands continuously and no-one else used them. In the late 1980’s or early 1990’s he provided a water system on the lands and erected an electric fence. From 1981 onwards he treated the lands as his own and no-one ever complained to him and or said that he should not be there. The first objection to his being on the lands was in 1997 and 1998 when people came to fence the lands on behalf of Donal G. Feehan. In the late 1980’s or early 1990’s he had applied to the Department for Agriculture for area aid in respect of the lands and in so doing had described himself as owner. He was aware of the litigation between the next of kin of Edmond Dwyer and Donal G. Feehan and he swore an Affidavit in aid of the Plaintiff therein, attended a consultation and attended at Court to give evidence both in the Circuit Court and in the High Court in Dublin.
6. Edward Hally, an agricultural contractor gave evidence on behalf of the Second named Defendant. He acted as agricultural contractor for Christopher Leamy in the Autumn of 1984 and saw the lands. The grass was high and it was clear that there was no trespass of cattle onto the lands and that no use was being made of the same. The evidence of Mr. Hally suggests that the first year in which the Second named Defendant used the lands throughout the entire year was 1985.
7. Thomas Prendergast, an agricultural contractor, gave evidence on behalf of the Second named Defendant. From 1984 onwards there were cattle on the Leamy lands to the East and West of the lands and as the fences were bad cattle could roam onto the lands. Up to 1984 the grass was long on these lands and it was clear that they were not being grazed.
8. The Plaintiff gave evidence. He acquired the lands in 1978. He left matters in the hands of his brother, Donal G. Feehan. He went to see the lands after they were purchased. When he was there Christopher Leamy came down and threatened him and every time anyone went there on his behalf they were threatened by Christopher Leamy. Over the years he himself would visit the lands some six times per year until he had an accident some three years ago, after which he had not travelled to the lands. Throughout the time that he travelled to the lands their condition was the same: they were neglected and unused. He never saw any animals on the land. When he went to the lands he would look in at the same from the road and by going up to the gate but did not enter upon the lands proper.
9. Jim Hewitt, an agricultural contractor, gave evidence that he went to the lands on the 29th October, 1998 to fence the boundaries. He was ordered off the lands by the Second named Defendant. He telephoned the Gardai and he was there when they arrived. The Second named Defendant in his presence told the Gardai that the lands belonged to a man in America.
10. Garda Ryan gave evidence that he was a Garda stationed at Cashel and that he was called to the lands on the 29th October, 1998 where he met Mr. Hewitt who had a worker with him and the Second named Defendant. The Second named Defendant told him that the lands were owned by people in America.
In Murphy -v- Murphy , (1980) I.R. 183 at P. 202, Kenny J had this to say as to the meaning of “adverse possession”:-
“The use of the words ‘adverse possession’ in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In Section 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner and all other persons from enjoyment of the estate or interest which is being acquired.”
11. In an unreported judgment, Browne -v- Fahy , Kenny J, 24th October, 1975, a passage from Lord Advocate -v- Lord Lovat , (1880) 2 App. Cas. 173 was cited with approval:-
“The question whether a defendant who relies on the Statute of Limitations was and is in adverse possession must be considered in every case with reference to the particular circumstances…., the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with due regard for his own interest…. all these things greatly bearing as they must under various conditions, are to be taken into account in determining the sufficiency of a possession.”
In Seamus Durack Manufacturing Limited -v- Daniel Considine , (1987) I.R. 677 at 683, Barron J deals with adverse possession as follows:-
“Adverse possession depends upon the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined.”
In Buckinghamshire County Council -v- Moran , (1989) W.L.R. at 162 Slade’s said:-
“If the law is to attribute possession of land to a person who can establish no paper title to possession he must be shown to have both actual possession and the requisite intention to possess (animus possidendi). A person claiming to have dispossessed another must similarly fulfil both these requirements.”
12. On the evidence before me clearly it cannot be said that the Plaintiff discontinued his possession. Having acquired the lands he enforced his entitlement to possession by seeking and obtaining interlocutory relief against the then Defendant in this action, Christopher Leamy. Thereafter he was involved in litigation in which his title was ultimately vindicated by the Supreme Court on the 21st November, 1996. The Plaintiff in evidence said that he could not prosecute his claim against the Defendants in this action until the question of his title should be resolved. It is therefore necessary to see if the Second named Defendant can be said to have dispossessed the Plaintiff. As to dispossession, the comments in Leigh -v- Jack , (1879) 5 Ex. D. 264 have been misunderstood: see Murphy -v- Murphy , (1980) I.R. 183 and Seamus Durack Manufacturing Limited -v- Considine , (1987) I.R. 677. As properly understood they indicate what is required for dispossession. The Plaintiff here at no time had any cattle or other animals on the land and did not require the same for grazing. The only use to which he put the land was to visit it on a number of occasions each year when he would park his car and standing on the road or in the gateway look over the hedge or the gate into the same. He was never prevented from doing this by the Second named Defendant. Insofar as the Plaintiff’s title is concerned the presumption is that it extends to the centre of the road and so when standing at the gate looking into the lands the Plaintiff was in fact standing on his own lands. This he did from the evidence several times a year throughout the period in which the Second named Defendant claiming to have been in adverse possession. As I understand his evidence, the Plaintiff was exercising all the rights of ownership which he wished to exercise in respect of the lands pending the determination of litigators. I find as a matter of fact that he was not dispossessed.
13. Further, I find that the Second named Defendant did not have the necessary animus possidendi to dispossess the Plaintiff. The Defendant’s position was analogous to that of the Defendant in Leigh -v- Jack of whom Cockburn CJ said at p. 271:-
“I do not think that any of the defendant’s acts were done with a view to defeating the purpose of the parties to the conveyances: his acts were those of a man who did not intend to be a trespasser or to infringe another’s rights. The defendant simply used the land until the time should come for carrying out the objective originally contemplated.”
14. I find on the balance of probability that the Second named Defendant’s state of mind was that litigation was pending and dragging on in relation to the lands which were lying idle and ungrazed. The Second named Defendant was a witness for the next of kin of Edmond Dwyer and to some extent must have been aware of the progress of the proceedings. When the events occurred to which the Gardai were called on the 29th October, 1998 the Second named Defendant told Garda Ryan in the presence of Mr. Hewitt that the lands belonged to a man in America. This answer indicates to me the absence of the necessary animus possidendi – an intention to preclude the true owner and all other persons from enjoyment of the estate or interest which is being acquired.
15. In summary then the Second named Defendant has failed to satisfy me on the evidence that he has dispossessed the Plaintiff and also, insofar as he was in possession of the lands, that he was in possession of the same with the necessary animus possidendi. Accordingly, I propose granting the injunctive relief sought by the Plaintiff.
Nolan & Anor v. Noone & Anor
[1989] IEHC 17 (16 June 1989)
An unusual feature of this case is that the person who is entitled as personal representative of the registered owner, Mrs Catherine Noone (the first-named Respondent) has opted not to take part in these proceedings. Mrs Noone was the person against whom adverse possession was claimed during most of the twelve-year period. She has not put in any affidavit contradicting the Applicants’ averments and she made no statutory declaration as to possession and occupation of the disputed triangular plot when it was sold to the Respondent. As in any other claim of. adverse possession, the facts of the case are extremely important.
Mr Braun, who came back from South Africa to give evidence, said that he was the first purchaser of a site from Mr Noone, the registered owner, on this small estate of five houses. At the time he bought the site the land surrounding it was a wilderness. Mr Braun said that when he met Mr Noone on site for the purpose of indicating the boundary, Mr Noone stood where the gate post is and put a pole in the ground and pointed across to the nursery on the opposite side of what is now the road, thus including the triangle, and then said that he needed space for storage and brought the line of the boundary around to exclude the disputed triangle. Mr Braun said he thought because the triangular plot abutted his site that it would form part of his property when the building was completed.
The triangular plot was used by Mr Noone for his building operation. He stored on site builders’ materials such as blocks, bricks, timber and so on, depending on what stage of the building operation he was at, and he had a builder’s but on it.
Once Mr Noone had indicated the site to Mr Braun, Mr Braun and his father-in-law, Mr Donaldson, planted over one hundred trees. This was in 1967. Mr Braun said that he planted the trees within-the boundary indicated to him by Mr Noone. He said there was no and never was a fence between the triangle and the Braun site. The trees were not planted as a boundary; they were not planted in a straight line but were staggered. It was possible to walk through the trees to the triangular plot.
I accept that, even when Mr Noone was carrying on his building work, Mr Braun kept the area clear on the triangle side near to the trees which he had planted. When the building operations were over – this was in 1971 – Mr Braun asked Mr Noone to remove from the site the builder’s hut and the building materials, and he had to ask several times before this was done. The builder’s hut and the materials were removed, apart from some steel girders which were left lying in a ditch alongside the hedge which formed the boundary with the second-named Respondent’s property. Not all the rubble was removed despite Mr Noone being asked to remove it so Mr Braun removed it himself by hand and took it by car to the local tip. That was early in 1972. Mr Braun then commenced tending the area.
As to his state of mind, Mr Braun said he assumed he had a right to the disputed triangle. He understood that it was the remainder of the sub-division. Each site was about one acre. He said that the triangular plot was a natural abutment to his property, that if Mr Noone had come back to the triangular plot in 1974 he (Mr Braun) would have objected as he felt that the plot was part of his property. Mr Noone had obviously lopped the disputed triangle off for a particular purpose and never appeared on it again after he moved off in 1972.
I completely accept Mr Braun’s account. Particularly in the absence of any claim to the contrary by Mrs Noone, I consider that the only inference to be drawn is that Mr Noone, having originally intended to include the triangle as part of Mr Braun’s site, decided to exclude it for the purpose of using it as a site office. Once the building operation was completed, Mr Noone had no further intended use for the plot and he discontinued possession. I do not consider that leaving the steel girders lying in the ditch indicated that Mr Noone intended to come back. The very fact that the girders are there today indicates to me that the cost and trouble of removing them was more than they were worth and they were also effectively abandoned. As far as Mr Braun was concerned, he had the animus possidendi. Mr Braun considered that the place was his as an accretion to his garden once the building operations were over and once Mr Noone moved out. I accept the evidence that from early in 1972 Mr Braun tended the triangular plot and kept it as part of his property. I do not accept the evidence of the Respondent’s witnesses that the disputed plot was not tended until the 1980’s and I resolve this conflict of evidence entirely in favour of the Applicants.
When the Nolans came to inspect the property before buying it, the plot looked as if it formed part of and was incorporated into the garden. The absence of a boundary fence beside the road is not extraordinary. One often sees American-style open-plan gardens where the gardens are beside the road with no obvious fence or boundaries. The Braun site was itself triangular and this small triangular plot was a natural tip of the triangle. There was no boundary fence at all from the gate post along the side of the triangle, the trees were staggered and there was a path through the trees.
Mr Braun said that he did not specifically mention the triangular plot to the Nolans because he had got so used to treating it as his own.
As to the Nolans, Mr Nolan said that he saw this plot as part of the entire site, that it was in just as good a condition as the rest of the site. Mr Nolan believed that Mr Braun owned the plot and understood it to be part of the sale. He said that he did not examine the maps closely. It was not until the planning permission issue arose about 1986 that M r Nolan realised there was another claim to the triangular plot. Mr Nolan thought the disputed plot was his and he treated it as such. The Golden Leanders were planted in the triangle in the belief that it formed part of the garden.
There was a lot of time devoted to these trees but there is no dispute that Mrs Ryan purchased them for the Nolans. It does not matter one whit whether Mr O’Connor planted three of them or not. They all belonged to the Nolans and were planted for them on what they believed to be their ground. So the position was that until the planning permission issue arose the Nolans thought they owned the triangular plot. The Nolans had bought the house thinking that the plot was included in the sale and Mr Braun thought that he owned it.
The disputed plot was not included in the Deed of Transfer because nobody adverted to the title to it, but the Deed of Rectification which was subsequently executed vested Mr Braun’s interest in the Nolans.
I do not consider that the letter written by Mrs Nolan in relation to the planning appeal casts doubt on these facts. The letter was written after the Nolans had discovered that Mr Noone was, in fact, still the registered owner of the plot and before they had gone to their solicitor for advice. As long as their state of mind during the twelve-year period was that they owned the triangular plot, the animus possidendi was present and I am completely satisfied that they had the necessary state of mind.
I am also satisfied that neither Mr or Mrs Noone gave authority to Mr Ryan to instruct Matheson, Ormsby & Prentice to make an offer to purchase the plot. I am also satisfied that none of the neighbours made any use of the site and that the comings and goings across the plot that were described by Mr O’Connor were non-existent.
There is no question here of the Nolans or Mr Braun using the property for a temporary or seasonal purpose until the time should come for carrying out a special purpose contemplated by the owned. There was no such purpose once the building was completed.
The registered owner abandoned this small plot which had originally been intended as part of site No.5. It was then factually incorporated into the garden of site No.5. Furthermore, it cannot be said that it was a plot which was incapable of use and enjoyment. It became absorbed into the garden as a natural completion of the site and was occupied exclusively by Mr Braun and then by the Nolans. Following discontinuance of possession by the registered owner, the occupants of site No.5 enjoyed exclusive use of the plot and to their knowledge no one else made any use of it.
On those facts I am satisfied that the Nolans are entitled to be registered as full owners of the triangular plot.
There was one further argument which I must deal with: that because the Deed of Rectification was not before the Registrar the Nolans cannot now produce it or rely on it. There is no merit in this argument. The appeal before me is one in which new evidence could be adduced and both parties have made full use of this facility by swearing further affidavits. I wanted to hear all relevant evidence and the Deed of Rectification is relevant.
Fanning v. Jenkinson
, July 2, 1997, Kinlen J.
Judgment of the High Court delivered by Mr. Justice Kinlen on Wednesday the 2nd day of July, 1997.
1. This action commenced by Equity Civil Bill dated the 16th May, 1994. The property in question is in Skerries in County Dublin. A stream runs from an old mill towards and under the bridge on Holm Patrick Road, Skerries and proceeds to the sea. At one time it was tidal but, in recent years, because of alterations made, it is no longer tidal.
2. An aunt of the Plaintiff had lived in premises called Cosy Cottage on the northern side of the stream since about 1928. The Plaintiff acquired the property from his aunt in 1968. Between the old Cosy Cottage and the stream he constructed a house for himself and his family in 1969. The Plaintiff built a modern house to his own design and erected it. He made the rooms look out towards the stream. The bank on the far side of the stream rises up some feet and then levels out. This had all been the property of Shenick Lodge which passed through various hands and eventually the land facing Holm Patrick Road were sold in two lots. The Defendants purchased the holding beside the Plaintiff. The Defendants’ predecessors in title undoubtedly owned from the middle of the stream. However, the Plaintiff alleged that there had been a fence through part of the trees opposite his premises at a level, more or less with the field on which the Defendants had constructed their house. The Plaintiff’s firm had been employed as the architects to prepare maps. The Plaintiff on the map showed a boundary fence. This was well back from the stream. The Plaintiff then sought permission to mend the fence but instead erected a completely new entire fence along the line he had inserted as architect on the plans prepared by him. He had asked permission to repair an existing fence but instead had built a very strong clearly discernible fence. It was not exactly in place of the existing fence in many places. It was not a repair job but a new structure. The Defendants went back to the vendors who agreed that they owned down to the centre of the stream and that the map on the transfer was inaccurate. They then entered into a deed of rectification showing the Defendants property going to the centre of the stream. The Plaintiff realised from the paper title they were not permitted to develop the southern bank of the stream opposite their dwelling. However, they claimed to have acquired a squatters title. This was the kernel of the case which came before the Circuit Court and subsequently on appeal to this Court. The Plaintiff alleges that there was a very clear boundary insitu, namely, a fence which had been erected prior to his acquisition of the property by the Defendants’ predecessor in title, a Mr. Malone, now deceased. He says that the stream instead of being a boundary as is suggested now by the Defendants, was in fact a feature incorporated into his garden with a waterfall, a fountain and other similar adornments installed by the Plaintiff.
3. He has maintained and cleaned the stream and the areas around it. The Defendants proceeded to remove the new fence. Application was made to the Circuit Court for an injunction and on the 17th May, 1994 His Honour Judge Devally granted an interlocutory injunction restraining the Defendants from remaining on or carrying out any further works or otherwise trespassing on the lands enhanced in green in the Equity Civil Bill and the Plaintiff got permission to reinstate the boundary fence pending the hearing of the action. Costs were reserved. An application was brought to the High Court for a stay on the Order of the Circuit Court when Counsel on behalf of both parties, undertook not to take any steps to interfere with the disputed area. The High Court on the 25th July, 1994, put a stay on the execution of the said Circuit Court Order pending the final determination of the Defendants’ appeal. Once again the question of costs was reserved. On the 19th December, 1994 the Defendants filed a defence and counterclaim. The Plaintiff has alleged that he has been in possession of the lands in question in excess of 25 years. The defence is a traverse, the counterclaim reads as follows:-
“1. The Plaintiff acquired title to his property at Shenick Lodge, Skerries in the County of Dublin under and by virtue of an indenture dated the 4th January, 1968 between Elizabeth Fanning of the one part and the Plaintiff of the other part. At that time the boundary between what is now the Plaintiff’s and the Defendants respective properties was in law and was acknowledged in fact to be the stream running along the northern boundary of the Defendants said property.
2. Under and by virtue of an indenture dated the 12th day of April, 1991 between John McInerney and Ronald Hopkins of the one part and David Jenkinson and Miriam Jenkinson of the other part, the Defendants became the legal and beneficial owners of their property at Shenick Lodge, Skerries in the County of Dublin. The Plaintiff is an architect and a member of the firm of Fanning Levins and Associates, Architects, which said firm were instructed by John McInerney and Ronald Hopkins to prepare the map which was attached to the said indenture of the 12th April, 1991. The said map wrongfully and inaccurately represented the boundary between the Plaintiff’s and the Defendants respective properties. On the 13th day of September, 1993 John McInerney and Ronald Hopkins executed a deed of rectification. The map attached to the said deed of rectification accurately records the boundaries between the Plaintiff’s and the Defendants respective properties as being the centre of the said stream.
3. On Sunday the 28th February, 1993 the Plaintiff requested and the Defendants granted permission for the Plaintiff to enter upon the Defendants’ property for the purpose of carrying our repairs to a number of free standing screen fences. In breach of the said permission, the Plaintiff dismantled and removed the said screen fences and erected a continuous timber fence some two feet to the south of the line of the said stream fences and inside the boundary of the Defendants’ property.
4. The Plaintiff has cut and removed trees along the southern bank of the said stream and along the southern side of the fence erected by the Plaintiff and has carried out landscaping and other works thereat.
5. By entering upon the Defendants’ property in breach of the terms the consent of the 28th February, 1993 by removing the said free-standing screen fences and replacing them with a continuous fence and by carrying out the said landscaping and other works, the Plaintiff has trespassed upon the Defendants said property and committed acts of waste thereon.”
4. The Defendants want a declaration defining that the boundary between their respective properties and an injunction to prevent trespass and damages for trespass and costs.
5. The first question is where is the boundary between these two holdings? Secondly, if the boundary is as the Plaintiff asserts, was that the correct one delineated by the fence erected in 1993. Obviously it is not as it does not replace the original partial fence but is a foot or more on the southern side of it.
EVIDENCE
6. His aunt had owned Cosy Cottage on the grounds of which the Plaintiff wanted to build his own house in 1969. The main rooms face the river. The land on the other side belonged to a Mr. Malone of Shenick Lodge which was an orchard. He had young children. The river could be quite dangerous as it was tidal with a screen of trees along his side. There was fencing, oak steaks and lathes. The Plaintiff’s family moved in in December 1970. Photographs were produced which show part of the fence between trees. The fence was originally horizontal but the present fence is vertical and higher. The Plaintiff stated that the portion of the bank which he used was two feet to seven feet wide. His family planted bulbs, they built a bridge and put in a children’s playhouse. No-one else used the bank. The Plaintiff produced photographs purporting to show he was the user of the bank of the stream. Many of the photographs were taken in the mid and late 80’s.
7. The Plaintiff objected to changes in the Defendants’ planning permission. His firm had drawn the map in the original transfer with the Defendants dated the 12/4/91 where he shows a timber fence. An Bord Pleanala upheld the permission but with conditions to preserve trees and not to interfere with the privacy of neighbours. In 1991 he asked permission to repair the fence on the Defendants side. The Defendants agreed and he replaced the entire fence between alleged holdings. The work was done in about four or five days and the Plaintiff gave a hand in its construction. The Defendants’ house was built after the Plaintiff rebuilt the fence with the Defendants’ permission. It was only when he got home he found that part of the fence had been taken down and the Defendant said he had seen his solicitor and continued to knock it. Later photographs were taken in 1992 and 1993. The Plaintiff agreed that Cosy Cottage still stands and that it should have been knocked under his planning permission. He contends that a line on the map shows the fence as a thin line. He made a new map in July of 1989 based on the ordinance survey and he inserted the word “fence” which is not on the ordinance survey. There was an indenture on the 30th December, 1989 from McCormick to McInerney and Hopkins. The map on this deed was original and was not drafted by the Plaintiff. However, McInerney and Hopkins sold part of their take to the Defendants and the map on that deed was prepared by the Plaintiff. This plan in October 1990 was the same as that done by the Plaintiff in July 1989 with the word “fence” being inserted. The two sites on Holm Patrick Road were sold to Dalton and Jenkinson respectively. If one added these together there is a shortfall in favour of the Plaintiff as a result of the alteration of the boundary in the maps drawn by him. However, fraud was not pleaded. On the 30th September, 1993 there was a deed made between McInerney and Hopkins and the Defendants which referred to a principal indenture of conveyance dated the 12th April, 1991 between the same parties. It was recited that there was a mistake common to the parties to the principal deed. That the map or plan (drawn by the Plaintiff) annexed thereto purporting to designate the premises thereby assured was incorrect. This was a deed of rectification and would include in the Defendants’ holding the northern bank of the stream being part of the property assured by a deed of conveyance dated the 13th December, 1989 between Colm McCormick of the one part and the vendors, McInerney and Hopkins, of the other part. This deed deals with the piece of land between the stream and a timber fence. The timber fence, as we have seen, was erected by the Plaintiff on the 28th February, 1993 as shown on the plans prepared by the Plaintiff as “timber fence” and runs the entire length of the site. The Plaintiff states that his claim is for adverse possession and that they started the adverse possession in 1970 based on the fence which was continuous opposite his house. He says the fence was raised in 1969/70 and it was present when he arrived on the site. He did not know that it was erected to protect children until the Circuit Court. He says there is a gap in a dangerous part of the fence. He may have discussed trees with Mr. McCormick and perhaps agreed to trim them. He does not recall a joint exercise to trim or prune trees in 1983. They were brushing by his house but he does not remember asking permission from Mr. McCormick but probably did. The bridge in photograph 6 was modified from time to time. Children use to play on it. It was a moveable feature. He had no photographs of the “dens”. There were no tree houses after 1990. The fence and the lights were taken down in May of 1994. The lights were there for twelve to fourteen months. The waterfall existed a year earlier and the rocks also were a year earlier. All these features were started about 1987. The new fence we see in photograph 18 he said was erected between 1991 and 1992 but earlier he had said it was erected on the 28th February, 1993. He agrees that he asked the Defendants’ permission to repair the fence from their side but he did not ask to replace it.
8. Mrs. Fanning stated that the Plaintiff and herself were married in October 1964 and lived in Cosy Cottage. They started their new house in 1969 and moved in in 1970. There were trees and shrubs and a fence along the bank. It ran from the bridge down to the shed at the end of the Plaintiff’s site. There were no gaps in it. It was solid. They cut down weeds and shot rats on both sides of the river. They have three children born respectively 1965, 1968 and 1972. She says they started planting in 1971 and every year thereafter. Their children were in the stream and on the bank. Mr. Malone was their neighbour initially. He had teenage children. She never saw them on the bank. She thought Malone moved in 1973 and that the new owners lived in Belfast and they let it to a cult and then to a pilot neither of whom were on her side of the fence. My children had “hiding” holes and huts built about 1973 and do not know how long they were used. In 1978 you could not see through the timber fence save where a knot on the tree fell over. Mr. McCormick was there to 1989. Children could not get through the fence. They went out gates and in the entrance. On Mr. McCormick’s side of the fence there was a lawn and she thought a glass house. He had ponies there for six months or a year. They were tethered and as a result they pulled down part of the fence. In 1984 her husband, her son and a nephew of Mr. McCormick, Patrick O’Connor, repaired it. In 1979 and 1980 the river used to flood and came up to the arches in the bridge on Holm Patrick Road. The husband and sons helped to repair it. When Mr. McCormick left the fence was deteriorating. The successor in title had small children. Between 1989 and 1991 they had nailed up the odd plank. They trimmed trees and planted them. The Plaintiff brought stones onto to the far side in 1989 and the waterfall started about 1985 and its form varied over the years. In 1992/1993 they had some trees lopped on both sides of the river and they got permission. They could not get tree cuts as they were no longer produced and so put up a new fence. Lights were first put down in 1986/1987 and were rearranged thereafter. She alleges that the new fences were in the same place as the old fence. In the view of the Court this is not correct. In 1984 because of works of the County Council the stream had become non-tidal. The last big flood was 1983. She insists lights were there since 1986. She swore there was no gap in the fence near the bridge. The stream was cleaned by the local authority. Peter Ferguson, an architect for the Plaintiff, had given evidence about the amount of bank which it is alleged is the Plaintiff’s by virtue of adverse possession. Darragh Fanning, the son of the Plaintiff, gave evidence that if he wanted to swim with permission in the swimming pool in Shenick Lodge he had to go out onto the main road then onto the main avenue to get to the swimming pool as it was not possible to get through the bank from their house. There was a gap further down stream where the McCormick children came through.
9. After the Plaintiff’s case an application was made for a direction on the grounds that the Plaintiff was bad on dates and that he differed fundamentally from his wife. He had no paper title and that paper title only entitled him to claim to the centre of the stream. Two of the maps were drawn by the Plaintiff to the Plaintiff’s benefit and these alternations are in many of the photographs taken before the Defendants commenced building. They had watched the planning procedure very closely and appealed always on the last day against any decision in favour of the Defendants. Mr. Allen for the Plaintiff stated that from 1970 the house was finished and the bank was used by his clients. He agreed that work on the bank was pivotal to the Plaintiff’s case. The Court refused to grant a direction. The Defendants went into evidence. Firstly, Mr. Malone gave evidence. His father was the owner of Shenick Lodge. He held the freehold on the 26th December, 1971 but previously had held under lease up to December 1951. This witness was born in 1954. His father’s property was sold to a company called Shenick Lodge Limited on the 20th December, 1973. He states that his father owned from Holm Patrick Road to the sea and the river on the north was the boundary. He remembered bushes and rusty fences. They were not there when he was very young. He stated that in 1964 his father put up the fence in sections along the river in between trees and shrubs. When he was about fourteen his father got trees lopped on the south side of the river. His family were in charge of the south side and they looked after the trees. No-one else dealt with the south bank up to 1973. He was unaware of anyone working there. He did not see lights or waterfalls. There was no continuous fencing in the Plaintiff’s property. It was shrubbery and fencing. He remembers trees, shrubs and a part of a fence. The fencing was erected about 1976 but he didn’t know why it was built. Mr. Colm McCormick purchased Shenick from Shenick Limited on the 4th December, 1978. He was born in 1945 and remembers being on the property in 1955. There were some small wires between trees and bushes but no fences at that time. In the early 70’s fencing was erected by Mr. Malone Senior. They were bark tree fences. It was less than 50% and was intermittent. He had access to the river through hedges. He bought it in 1978 and when he purchased it there was a gap between the wall on the Holm Patrick Road and the beginning of the fence. In 1984 the Plaintiff (whom he described as a good neighbour) said the trees were too big and could he top them. They were opposite his house on Mr. McCormick’s side of the river. Mr. McCormick said his cousin, Patrick O’Connor, would do the trees and he got Darragh Fanning and Patrick O’Connor to top the trees. At that time also Mr. Fanning asked could he repair the fence and said that he could get the fencing material. According to this witness Mr. Fanning said “would we repair it?”. “If you can get hold of bark we can do it together”. He let the property to “the Way” cult on the 4/9/81 to September 1981. When he sold it to Hopkins and McInerney there was no-one in adverse possession of the river bank and there was no evidence of lights and waterfalls. The fence was intermittent and was never continuous. He was very familiar with the property for over thirty years although he only owned it himself for eleven years. He presumed that the fencing was to prevent children from falling into the river. He cleared weeds on the south bank of the river occasionally about two or three times a year. They came through the gap near the road into the bank. He owned the lands from the road to the beach. His cousin cleared the bank regularly and he did it two or three times.
10. The next witness was Mr. John Hopkins who with Mr. McInerney on the 30th December, 1989 bought the undivided property. He and his family resides in Shenick Lodge. He owns out to the stream and still does. He was last on the south bank in 1990. It was nothing but a derelict site with old cans. He never saw any cultivation there. The area facing Holm Patrick Road was divided into two sites. The avenue up to his house was maintained. His house was on the seaward side of the property. He sold to the Jenkinsons out to the centre of the stream. He did not realise that the Plaintiff as architect had drawn the map showing the boundary of the timber fence. They executed a deed of rectification on 13th September, 1993. In the deed of the 13th December, 1989 from Colm McCormick to John McInerney and Ronald Hopkins the stream is undoubtedly the boundary. There were bits of fences and trees which were not continuous during his occupation. He had gone in with his daughter to the gap near the bridge and stated that visually or otherwise the bank was not part of the Plaintiff’s garden.
11. Mr. Vincent Murphy was an architect retained by the Defendants to apply for and get planning permission. In May 1991, he surveyed the site and had been there first in September 1990 and went through the gap near the bridge and noted the tree sizes for 1-2 hours. He did the full bank. It was overgrown but relatively easy to traverse. The bank was rough and unattended and slopped. Near the bridge it is relatively flat, then it gets narrow. He walked directly in front of the Plaintiff’s house. He saw no waterfall or lights or sculpture. He saw a weir about 20 yards from the bridge. It was an engineering feature. The fence was fairly rough and broken in places and was a bit haphazard. He compared the maps of 1970 and 1990 and there was a shortfall of roughly 10% of the whole site. On the basis of the line being the timber fence, he had assumed that his clients had only bought as far as that. The Defendants had altered their plans so as to minimise the interference with the privacy of the Plaintiff. The Plaintiff was reasonable. The witness agreed that Mr. Fanning’s house faces the stream and has feature windows looking on to it. The 1973 Ordinance Survey is the most recent and it does show a line, fence or a wall running the full length opposite the Plaintiff’s holding.
12. The next witness was Patrick Costello who has retired from the Dublin County Council. He was in the Drainage Section and lived about a quarter of a mile upstream, the area in dispute. He was the Ganger and later the Foreman from 1974 to 1991. He went into the stream and cleaned it from the railway bridge down to the beach. They put silt on the banks and carried away in lorries. He said the banks were very slanted with grass and weeds. He never noticed anything in the stream. He never saw huts or dens on the banks between 1974 and 1991. He never saw rockeries or a waterfall. The existing weir was a County Council sluice and was intended for engineering and not architectural benefit. It was built in the early years of this century. He never saw lights or cables and would be very concerned by cables or pipes in the stream. He always walked along the bank opposite Fannings. He got into it up at the “Maltings” and got under the bridge. The Fannings side was nicely kept and was rough opposite.
13. Mr. Patrick O’Connor was a cousin and godson of Mr. McCormick and lived in Shenick from 1980 to 1989 intermittently. He was born in 1969. He knew the Fanning children and he was often in their house. He knew the bank and he used to clean it of weeds and he was in and out of the stream mainly during the summer. He used the scythe in the stream and on the bridge and upon the bank. Often he was in the stream. There was no dens, rockeries, waterfalls, pumps or lights. There was fencing of part of the bushes opposite Fannings but it was not continuous. Photographs 1 and 2 which showed a very young boy (son of the Plaintiff) in front of a fencing described by this witness as not like the fencing that he saw. Indeed, it does not look like the fencing in other photographs. He did work on both sides of this intermittent fence on behalf of Mr. McCormick but never on behalf of Mr. Fanning. He did fill gaps with Mr. Fanning to the knowledge of Mr. McCormick. Even after that there were small gaps all along. Back in 1984, in his hearing, the Plaintiff asked Mr. McCromick to be allowed to cut trees on the southern side as they were hitting against his windows. This witness was party to the cutting of those trees. He cleaned the whole stream every three or four weeks in the summer. He used long handled scythes or bill hooks.
14. The Defendant, Mr. David Jenkinson knew the property for a considerable time. He lives nearby. He knew there was intermittent fencing when he bought the site. He had trouble getting planning permission. He was doing 90 hours a week trying to preserve his business that eventually failed. The planning authority had opposed planning permission. When the Plaintiff contacted the Defendants requesting permission to do some repairs, the Defendants gave permission as a conciliatory gesture. A lot of the existing fencing was between trees and was not beside him. When the fence, instead of being repaired, was in fact renewed, no trees were left on Mr. Jenkinson’s side. He immediately contacted the vendors and there was a deed of rectification. When he studied the plans showing the timber fence he assumed that Mr. Hopkins sold the bank to Mr. Fanning and the vendor, Mr. Hopkins thought Mr. Jenkinson had sold the bank to Mr. Fanning. However, the discussion at Shenick is they both discovered that this was untrue and agreed to a deed of rectification. He saw ornamental lights after the fence was removed and they had put in pumps and lights. He disconnected these because they were on his property without his consent.
15. In their submissions to me, the Plaintiff had tried to make a case of equitable estoppel. However, it is pointed out by Mr. McGovern, S.C. for the Defendants that although the Civil Bill had been amended there was no mention of estoppel and that it was only at the very last moment they sought to introduce it. This Court held that the matter of estoppel did not arise.
16. The limitation period for land is twelve years. In the present case the Plaintiff claims title by adverse possession. He admits that on paper he has no title to the bank on the far side of the river. The onus is on the Plaintiff to show that he dispossessed the true owner or that the true owner discontinued his possession and also that he has been in adverse possession. The mere abandonment or leaving land vacant is not enough because until someone else goes into adverse possession, the owner has no right of action against anyone. The Defendants claim that the land is theirs. On paper it certainly is. While the current limitation period was established in the 1833 Act it is now incorporated in the 1957 Limitation Act at S.13(2)(a). The date from which the limitation period begins to run may be postponed because of the existence of a disability or fraud. The Plaintiff in this case was employed by the vendor and by the Defendants to prepare the map on the transfer deed. Indeed he did two maps in which he showed the fence he himself had constructed as being the boundary. While it is hinted that there was fraud, the case was not pleaded or any serious effort made in cross-examining the Plaintiff to suggest there was any ground for such allegation. The Defendants say that the map that was drawn was a mistake. They rectified it by a subsequent deed.
17. There is a very strong conflict of evidence in this case. The Plaintiff is confused about some of his dates and differs from his wife’s evidence. The evidence for the Defendants was much clearer. It covered a longer period. The Court is not satisfied that the Plaintiff established exclusive adverse possession for twelve or more years. Indeed the Plaintiff himself agrees that features such as the lights and the waterfall and the rocks started about 1987. Proceedings were commenced on the 16th May, 1994. In the circumstances the Court up holds the decision of the learned trial Judge and dismisses the claim
Keelgrove Properties Ltd v Shelbourne Development Ltd
, [2005] I.E.H.C. 238
JUDGMENT of Mr. Justice Gilligan delivered the 8th day of July, 2005.
These proceedings were commenced by way of a plenary summons as issued on 30th May, 2003 and relate to a plot of ground which formerly was the site of No. 30 Moore Street Dublin 1. Both parties to these proceedings are property developers and it is not disputed that by an indenture of assignment made 30th July, 1997 between A. Brazil Limited of the one part and the plaintiff of the other part the property No. 30 Moore Street in the City of Dublin was assigned to the plaintiff for the unexpired residue of the term of the lease which said interest was an interest in possession.
The issue that arises in this matter is that the defendant maintains that it and its predecessors in title have for upwards of 12 years prior to the commencement of these proceedings been in undisturbed possession of the lands and premises known as No. 30 Moore Street in the City of Dublin to the exclusion of the plaintiff and have continuously over a period in excess of 12 years exercised all the rights of an owner over the lands and accordingly the plaintiffs title to the lands was by virtue of the statue of the Limitations Act, 1957 (as amended) barred and extinguished prior to the commencement of these proceedings and/or prior to the acts complained of in these proceedings and claim a declaration that it is and was at all material times the owner of the lands and has acquired title thereto by adverse possession and that the plaintiff has no estate title right or interest in the lands in question.
The background to these proceedings relates to lands at the junction of Parnell Street with Moore Street in the City of Dublin. The Sullivan family originally owned No. 59 Parnell Street which ran through to O’Rahilly Parade and was a butchers with an abattoir at the rear with access from 16 O’Rahilly Parade, No. 58 Parnell Street was run as a shoe shop and a bed and breakfast and 30A Moore Street was a shop which dealt in leather goods. No. 30 Moore Street was originally O’Connors Poultry Shop and No. 29 adjacent thereto was a pork butchers.
At some time in the 1970s Dublin Corporation intimated that they wished to widen Parnell Street and in or about 1983 agreements were entered into in respect of certain buildings at 30A Moore Street and 58 and 59 Parnell Street, which was the subject matter of compulsory purchase orders. Subsequently the houses on these sites were demolished in or around 1983. In or about 1986 No. 30 Moore Street was demolished by the Dangerous Buildings Section of Dublin Corporation. Mr. Daniel Sullivan began operating a car park on what was initially 58/59 Parnell Street and 30A Moore Street being in effect the corner between the two streets and subsequent to the demolition of No. 30 also began to use the levelled site as part of his car park. Dublin Corporation also were using sites along side No. 59 stretching back up Parnell Street for car parking purposes and Irish car parks had an arrangement with Dublin Corporation whereby they ran the car park. The ongoing situation from approximately 1986 was that Mr. Sullivan was using what was left of the sites of 58 and 59 Parnell Street and 30A and 30 Moore Street for parking approximately 14 cars and Irish Cark Parks by arrangement with Dublin Corporation had an extensive car park adjacent thereto. In or about 1985/86 a timber fence was erected by Dublin Corporation and apparently the fencing went all the way down Parnell Street and round and down Moore Street leaving an entrance to the car parking facilities at or about what had formerly being the site of No. 30A Moore Street. Subsequently when this fence was falling apart it was replaced in or about November of 1996 by Dublin Corporation. By November of 1989 Mr. Sullivan had a number of lads working in the car park for him. He was not paying any rent for the property and he paid the rates when they came due and also public liability insurance to cover everyone’s property. In essence Mr. Sullivan ran a car park on the site as referred to through until 1997 and he had the key to the gate of the car park. Mr. Sullivan sold his interest in the rear of 59 Parnell Street to Shelbourne Developments on 30th June, 1997 and handed over the key to his own solicitor to be passed over to the purchasers and after June 1997 he had no further involvement, with the area in question.
Mr. Tom Brazil though a Company A. Brazil Limited had previously purchased the interest of the former owner in No. 30 Moore Street and he was well known to Mr. Sullivan and in the late 1980s there was already considerable interest with relation to the development of the area and Mr. Sullivan wrote on 17th May, 1989 to Dublin Corporation Per Pro inter alia Mr. Tom Brazil showing the extent of Mr. Sullivan’s interest in what was left of No. 59 Parnell Street and inter alia Mr. Tom Brazil’s interest in No. 30 and indicating that if agreement could be reached with Mr. Tom Brazil and Dublin Corporation various properties could be put up as one unit for sale. As Mr. Sullivan was using the site of No. 30 for his car park arrangements at this stage he wrote to Mr. Tom Brazil that he acknowledged that he had no claim over his property at 30 Moore Street formerly known as O’Connors which acknowledgement he signed and dated 8th June, 1989.
Mr. Sullivan confirms there was a yellow hut which was operated by Irish Car Parks and each played along with the other in circumstances where he was parking approximately 14 cars and Irish Car Parks were taking the rest of the cars on the ground beyond No. 59 Parnell Street. Dublin Corporation gave Mr. Sullivan permission to pass over what had been 30A Moore Street for the purpose of utilising his car park and this was also the entrance to the ICP Car Park. Mr. Sullivan asked the owners of No. 60, Sepia, for permission, which was granted, to use their ground. He also asked Dublin Corporation for permission to utilise their property which would have included at that stage some portion of what previously had been No. 58 Parnell Street. Mr. Sullivan confirmed that he never had any claim against the owners of the property that he was using for the car park and that in particular in respect of No. 30 he says that he was never objecting or never standing in Mr. Brazil’s way and the same went with all the other properties. Mr. Sullivan accepts that he asked for and was granted Mr. Brazil’s permission to go on to his property and specifically stated “well I would not go on to another person’s property without him giving me permission”. Mr. Sullivan accepted that if Mr. Brazil wanted to sell his property he would not be standing in his way and there would be no point in him trying to block the sale because they were all friends and together they were negotiating with anyone who was interested. Mr. Sullivan agrees that whatever car parking was going on there was no question of him dispossessing Mr. Brazil no more than he was attempting to dispossess any of the adjoining owners whose lands he was using as a car park. Mr. Sullivan accepts that the purpose of his writing to Mr. Brazil to confirm that he had no claim over his property was so that they would not end up in court against each other in ten years time and he states that they would not have gone on like that in any event. Mr. Sullivan accepted that in 1989 they were all trying to put together a block of property on a smaller scale than was eventually achieved by the defendant and they were all agreeable in those days to sell. He accepts that they were trying if anyone was interested to sell as many properties together. Mr. Sullivan remembered meeting Mr. Cunningham of the plaintiff company and at the time he was attempting to put together a block of properties and he had a number of provisional deals around the block and the property Mr. Sullivan had for sale was No. 59 backing to O’Rahilly Parade and there was no question of Mr. Sullivan selling 30A as that belonged to Dublin Corporation, No. 60 which belonged to Sepia, or No. 30 that belonged to Mr. Brazil. Mr. Sullivan accepted that is the situation which continued on through until Mr. Sullivan sold his property in 1997. During the period 1989 – 1997 there were a series of meetings between the local neighbours including Mr. Sullivan and Mr. Brazil in the Royal Dublin Hotel and the Gresham Hotel and these meetings were amongst themselves as the owners of property at the junction of Parnell Street and Moore Street and were conducted with a number of agents of property developers. Mr. Sullivan accepts that Mr. Brazil was going to get whatever his land was sold for and that was the whole purpose of the various meetings and that it was to their advantage as a group to get something done on the site. Mr. Sullivan confirmed that there never any question but that Mr. Brazil was going to get whatever money was going for No. 30 and no doubt about that at all. Around 1997 Mr. Sullivan accepted that all the owners were individually negotiating and that the two potential buyers were Mr. Cunningham on behalf of the plaintiff company and Mr. Kelleher on behalf of the defendant company. Mr. Sullivan recalled Mr. Brazil coming onto the site in or about 1988/89 and putting down a serious of pegs to mark out the site of No. 30 for the purpose of marking a boundary fence and Mr. Sullivan accepts that the pegs were there for a good while until Mr. Brazil gave Mr. Sullivan permission to move them. Mr. Sullivan accepts that he never had any right or title to the ground on which No. 30 had stood and when he sold his own property in 1997 he closed the gate of the car park on the Corporation on Sepia and on Mr. Brazils so whatever happened after he went he does not know. After Mr. Sullivan left the area in 1997 a company called Kekerberry Ltd. took over the management of the car park on behalf of the defendant company and remained there until January 2003 when the defendant company began to develop the very substantial site which they had put together bounded by Parnell Street, Moore Street, and O’Rahilly Parade save for that plot of ground upon which No. 30 Moore Street had stood and which now represents what can only be described as ‘a missing front tooth’ on the Moore St side of a very substantial development. Mr. Frank Kinsella was the main operator of Kekerberry and he says he was the only one who had keys to the car park which included No. 30 Moore Street and he never saw Mr. Brazil on site nor Mr. Cunningham of the plaintiff company and there was no way of accessing the site other than through the Shelbourne entrances on Moore Street and O’Rahilly Parade. Mr. Kinsella does not dispute that on an occasion in the summer of 1997 Mr. Cunningham came along one day and asked that a trailer which had been situated on the site of No. 30 be moved and this request was acceded to. Mr. Kinsella does not dispute that Mr. Cunningham may well have walked on the site every now and again. Mr. Kinsella accepts that he was told that there was an area to be cordoned off for a short period of time just inside the gate and that this was in a similar area to where No. 30 was situate. He referred to the fact that this area was cordoned off a couple of times on behalf of the defendant company and he was told not to park cars on it and he complied with the instruction. He accepts that this probably is the “tooth area” where No. 30 had previously stood.
Mr. Kinsella’s interest in this matter on behalf of Kekeberry being the management company who operated the car park from 1997 onwards extends to approximately a six year period prior to the institution of these proceedings. Accordingly in order to assess whether or not Mr. Kinsella’s involvement in this matter plays any meaningful role the court would have to be satisfied that Mr. Sullivan had adversely possessed the site of No. 30, Moore Street from the date of his acknowledgement that he had no claim over the site on 8th June, 1989, through until the sale of his land in 1997 to the defendant when he departed the area.
Statutory Provisions
Section 13(2) of the Statute of Limitations, 1957;
“The following provisions shall apply to an action by a person (other than a State authority) to recover land –
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.”
Section 14(1) of the Statute of Limitations, 1957;
“Where the person bringing an action to recover land, or some person though whom he claims, has been in possession thereof and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”
Section 18 of the Statute of Limitations, 1957;
“(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
(2) Where –
(a) under the foregoing provisions of this Act a right of action to recover land is deemed to accrue on a certain date, and
(b) no person is in adverse possession of the land on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”
Section 24 of the Statute of Limitations, 1957;
“Subject to section 25 of this Act and to section 52 of the Act of 1891, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.”
Section 50 of the Statute of Limitations, 1957:
“In this Chapter, “acknowledgement” means an acknowledgement, under section 51, 52, 53, 54, 55, 56 or 57 of this Act, made in accordance with section 58 of this Act.”
Section 51(1) of the Statute of Limitations, 1957;
“Where –
(a) there has accrued to any person (other than a mortgagee) any right of action to recover land, and
(b) the person in possession of the land acknowledges the title of the person to whom the right of action has accrued,
In the right of action shall be deemed to have accrued on and not before the date of the acknowledgement.”
Section 58 of the Statute of Limitations, 1957;
“(1) Every acknowledgement shall be in writing and signed by the person making the acknowledgment.
(2) An acknowledgement under section 51, 52, 53, 54, 55, 56 or 57 of this Act-
(a) may be made by the agent of the person by whom it is required to be made under whichever of those sections is applicable, and
(b) shall be made to the person or the agent of the person whose title, right, equity of redemption or claim (as the case maybe) is being acknowledged.”
In Murphy v. Murphy [1980] I.R. 183 Costello J. at p. 193 addresses the issue of “possession”. “The first question of fact to be determined is whether the defendant was ever “in possession” of the widow’s lands. In a passage which was quoted with approval in Treloar v. Nute, Lord O’Hagan in The Lord Advocate v. Lord Lovat said at p. 288 of the report:-
“As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct with the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.”
Later in his judgment at p. 195 Costello J. deals with the meaning of the words “adverse possession” wherein he states:-
“Notwithstanding that, the words ‘adverse possession’ have crept back into the statute of 1939; but there they only mean that a person is in adverse possession in whose favour time can run. Nevertheless it does seem to me that ‘adverse possession’ means to some extent at least that which it says. Time cannot run, as I see it, in favour of a licensee and therefore he has no adverse possession … The question here, therefore, is: what was the nature of the testator’s possession in and from 1951, when he conveyed the property away?”
Turning then, to the nature of the defendant’s possession, I think the test I should apply is this. Was the defendant’s possession inconsistent with and in denial of the widow’s rights as legal owner of the land? – See Moses v. Landgrove at p. 538 of the report. If it was, then the defendant would be “a person in whose favour the period of limitation could run” within the meaning of s. 18 of the Act of 1957 and his possession would be adverse. In considering a problem of this sort, the relationship between the owner of the land and the person in possession and the nature of the lands in controversy are highly relevant matters to be taken into account. If a person is in possession of lands with the consent of licence of the owner, then his possession is not adverse: see Hughes v. Griffin”.
Kenny J. in the Supreme Court judgment states at p. 202
“In s. 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a licensee or a person in possession as servant or caretaker or a beneficiary under a trust: Hughes v. Griffin”.
In the later case of Doyle v. O’Neill (Unreported, High Court, 13th January, 1995) O’Hanlon J. at p. 20 of his judgment deals very succinctly with adverse possession in the following terms.
“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alert to his rights that occupation adverse to his title was taking place. This is particularly the case where the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.
In Leigh v. Jack, (1879) 5 Ex.D.264, Cockburn CJ said (p. 271):
“I do not think that any of the Defendant’s acts were done with the view of defeating the purpose of the parties to the conveyance; his acts were those of a man who did not intend to be a trespasser, or to infringe upon another’s right. The Defendant simply used the land until the time should come for carrying out the object originally contemplated by the Plaintiff)”.
Lord Denning MR, in Wallis v. Shell-Mex, stated the law as follows (at p. 103 of the report):
“Possession by itself is not enough to give a title. It must be adverse possession. The true owner must have discontinued possession or have been dispossessed and another must have taken it adversely to him. There must be something in the nature of an ouster of the true owner by the wrongful possessor.
When the true owner of land intends to use it for a particular purpose in the future, but meanwhile has no immediate use for it and so leaves it unoccupied, he does not lose his title to it simply because some other person enters on it and uses it for some temporary purpose, like stacking materials; or for even seasonal purpose, like growing vegetables. Not even if this temporary or seasonal purpose continues year after year for 12 years or more … The reason is not because the user does not amount to actual possession. The line between acts of user and acts of possession is too fine for words. The reasons behind the decisions is because it does not lie in that other person’s mouth to assert that he used the land of his own wrong as a trespasser. Rather his user is to be ascribed to the licence or permission of the true owner. By using the land, knowing that it does not belong to him, he impliedly assumes that the owner will permit it; and the owner, by not turning him off, impliedly gives permission”.
That decision was followed by Goulding J. in Gray v. Wykeham-Martin, (Unreported, 17 January, 1977) when he said:
“Let me try to apply that principle to the facts of the present case. What do I find? A small piece, certainly not more than half an acre, on a farm of about 140 acres, useless in its existing condition, except as a shelter for stock in bad weather and as a covert for game. The use of the disputed land by the Plaintiff as a poultry run and other things she did on it in no way interfered with the present utility of the disputed land or with the possible future improvement of the farm by throwing the disputed lands into the larger adjoining fields. Thus, consistently with the reasoning in the Wallis case, as I understand it, I ought in my judgment to dismiss the action, and so I do”.
His decision and his interpretation and application of the Wallis case was later upheld by the Court of Appeal.
Slade J. said, in Powell v. McFarlane, (1979) P & C.R. 452:
“In view of the drastic results of a change of possession, however, a person seeking to dispossess an owner must, in my judgment, at least make his intentions sufficiently clear so that the owner, if present at the land, would clearly appreciate that the claimant is not merely a persistent trespasser, but is actually seeking to dispossess him”.”
I am quite satisfied in the factual circumstances of this case that Mr. Sullivan never intended in anyway to dispossess Mr. Brazil of his rights in respect of the land upon which No. 30 Moore Street was previously situated. He asked him for his permission to use the lands following the demolition of No. 30 Moore Street in or about 1986 for the purposes of a car park as he asked other adjoining owners. In a letter of 17th May, 1989 signed by Mr. Sullivan and written per pro inter alia Mr. Tom Brazil Mr. Sullivan specifically acknowledged Mr. Brazil’s ownership of the property No. 30 Moore St. and specifically referred to that property on a map attached to his letter which identified the property as owned by Mr. Tom Brazil and further on 8th June, 1989 in a written acknowledgement addressed specifically to Mr. Tom Brazil and as signed by Mr. Sullivan on 8th June, 1989 he acknowledged that he had no claim over Mr. Brazil’s property at 30 Moore St. Mr. Sullivan’s relationship with Mr. Brazil is of considerable significance because between 1989 and 1997 when Mr. Sullivan sold what remained of No. 59 to the defendants he was attending a variety of meetings with Mr. Brazil for the purpose of the adjoining owners coming together to effect a sale and as Mr. Sullivan stated in evidence it was to their collective advantage to get something done to the site and there was never any doubt at all but that Mr. Brazil was going to get whatever money was going for No. 30. Nothing in my view could be more consistent with the fact that Mr. Sullivan was simply using the site of No. 30 with Mr. Brazil’s permission until such time as either collectively or individually the various sites were sold off and he had no intention whatsoever to adversely affect Mr. Brazil’s ownership and further as he says himself when he sold out in 1997 he closed the gate “on Mr. Brazil’s”.
In my view on the evidence adduced there is no question of Mr. Sullivan’s usage of No. 30 Moore St. having been adverse possession and nothing remotely that could come anywhere near the criteria of O’Hanlon J. as set out in Doyle v. O’Neill whereby “the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alert to his rights that occupation adverse to his title was taking place”, or the criteria as expressed by Kenny J. in Murphy v. Murphy “that the inconsistency with the title of the true owner necessarily involves an intention to exclude the true owner and all other persons from enjoyment of the estate or interest which has been acquired”.
It follows that in my view there was no adverse possession by Mr. Sullivan of the site in question from the 8th day of June, 1989 through until his departure from the area in 1997 on the sale of his interest in what was left of No. 59 Parnell Street to the defendant.
For the sake of completeness neither would I be satisfied that there was any adverse possession in respect of the site between 1997 and the date of the institution of these proceedings. Mr. Kinsella on behalf of Kekerberry Ltd. was simply a management agent, retained by the defendant to run a car park on the site and he accepts that Mr. Cunningham did come on the site on an occasion and asked for a trailer to be removed from the area of No. 30 Moore Street which request was complied with and furthermore it appears that on a number of occasions he was requested by the defendant company to cordon off the area of the site of No. 30 and quite clearly his involvement was simply to manage the car park that was being operated thereon and no sufficient evidence has been adduced on the defendant’s behalf which would satisfy me that in some way this occupation could have left no doubt in the mind of the owner of the lands that occupation adverse to his title was taking place. In any event the occupation by Kekerberry is only of some six years duration.
In these circumstances I will hear counsel’s submissions as to the form the order of the court should take.
Approved: Gilligan J.
Moley v Fee
[2007] I.E.H.C. 143
Judgment of Miss Justice Laffoy delivered on 27th April, 2007.
The plaintiff’s claim as pleaded
These proceedings were commenced by plenary summons which issued on 25th July, 2000 between the plaintiff and Thomas Fee (the Deceased). The Deceased died on 16th January, 2005. Probate of his will was granted to the defendant on 22nd December, 2005. Subsequently, by order of the Master dated 11th May, 2006, it was ordered that the proceedings be carried on and prosecuted between the plaintiff and the defendant. In effect, the defendant is sued as personal representative of the Deceased.
At the hearing of the action the plaintiff was given leave, somewhat reluctantly, to amend his statement of claim. The factual basis of the plaintiff’s claim as pleaded in the amended statement of claim is as follows:
• The Deceased was formerly the owner of “certain lands situated at Wavecrest Drive, Blackrock, Dundalk, in the County of Louth, comprised within Folio No. 12029”.
• In or about the month of April, 1975 the defendant agreed to sell “a part of” that property to Patrick McEneaney and a part to Gerard Cumiskey for a consideration of IR£300 each and Mr. McEneaney and Mr. Cumiskey each paid to the defendant (meaning the Deceased) the agreed consideration of IR£300.
• As a result of the agreement (which in a reply dated 13th July, 2001 to notice for particulars was stated to be a verbal agreement) and in consideration of the payment of IR£300 each, the Deceased permitted Mr. McEneaney and Mr. Cumiskey to enter upon and take possession of the lands and carry out work of site improvement. Subsequently, Mr. Cumiskey placed a mobile home on his portion “of the said site”. Mr. McEneaney and Mr. Cumiskey have each enjoyed ownership and possession of their respective portions “of the said site” and have exercised such rights to the exclusion of all others without any objection from the Deceased.
• In or about the month of September, 1999 Mr. McEneaney and Mr. Cumiskey agreed to sell their respective portions of the said property to the plaintiff and the plaintiff has paid the agreed consideration.
• The Deceased by his solicitor alleged that the plaintiff had trespassed on the land and threatened to take action against him.
The basis in law of the plaintiff’s claim as pleaded is that by reason of the payment of the full consideration by Mr. McEneaney and Mr. Cumiskey to the Deceased, as alleged, each of them was entitled to the freehold interest in his respective portion of the property. By entry into possession of the property and continuing in sole and exclusive occupation by Mr. McEneaney and Mr. Cumiskey, any right or title of the Deceased has been statute barred. Mr. McEneaney and Mr. Cumiskey having paid the full purchase price for the property, the Deceased was a trustee of the property for Mr. McEneaney and Mr. Cumiskey. The plaintiff, having purchased the interest of Mr. McEneaney and Mr. Cumiskey, is entitled to the property.
The first relief which the plaintiff claims is a declaration that he is entitled to the freehold interest “in all the property situated at Wavecrest Drive, Blackrock, Dundalk in the County of Louth”. Additionally, he seeks declarations that the title of the Deceased is statute barred and, alternatively, that the Deceased was a trustee for Mr. McEneaney and Mr. Cumiskey. The plaintiff also seeks an order directing the defendant to convey or transfer the freehold interest “in the said property” to the plaintiff. If necessary, the plaintiff also seeks an order appointing a trustee for the purposes of conveying the property to Mr. McEneaney and Mr. Cumiskey and/or the plaintiff. An order is sought in the amended statement of claim which was not sought in the original statement of claim: an order for the rectification of the register “in respect of a portion of Folio 12029 County Louth, the subject of the proceedings herein”.
In recording the plaintiff’s claim as pleaded, I have highlighted what I consider to be vagueness and uncertainty as to the property the subject of the proceedings. While this was not an issue during the hearing of the proceedings, it is an issue for the court in the light of the evidence. However, I will return to that aspect of the matter later.
In his defence, the defendant has traversed all of the allegations made by the plaintiff in relation to the dealings between the Deceased and Mr. McEneaney and Mr. Cumiskey. In particular the defendant has denied that Mr. McEneaney and Mr. Cumiskey entered into and continued in sole and exclusive occupation of the property and it is further denied that Mr. McEneaney and Mr. Cumiskey paid the purchase price to the Deceased. Alternatively, the defendant asserted that, if there was an agreement between the Deceased and Mr. McEneaney and Mr. Cumiskey, it is unenforceable for failure to comply with the Statute of Frauds (Ireland) 1695. Alternatively, the entitlements of Mr. McEneaney and Mr. Cumiskey under the alleged agreement are statute barred. The defendant has also alleged that Mr. McEneaney and Mr. Cumiskey were guilty of laches.
The defendant has also counterclaimed against the plaintiff, asserting that the Deceased was the registered owner of lands comprised in Folio 12029 and that the Deceased was at all times entitled to possession of the property. There followed an allegation of trespass and of slander of title by the institution and maintenance of these proceedings. The relief sought in the counterclaim is an injunction restraining the plaintiff from interfering with the defendant’s property and damages for, inter alia, trespass and slander of title.
In his reply and defence to counterclaim the plaintiff joined issue with the defendant on the defence. Specifically, he asserted that the Deceased had by his solicitor in open correspondence acknowledged that he had sold “the said property” to the plaintiff’s predecessors in title, Mr. McEneaney and Mr. Cumiskey. It would appear that the defendant did not seek to identify the “open correspondence” by seeking particulars.
The facts: what happened between 1975 and 1977
In relation to the events between 1975 and 1977, the court heard the evidence of Mr. McEneaney and Mr. Cumiskey, who were called by the plaintiff, Mr. Cumiskey having appeared in answer to a subpoena. Two of the Deceased’s children, the defendant and Gillian McBride, were called by the defendant in relation to those events. At the time, the defendant was a small boy and Mrs. McBride was in her late teens. Mr. John Igoe, a retired garda, and Mr. Hugh Cafferty were also called by the defendant. By agreement, a planning file maintained by Louth County Council was admitted in evidence.
In the late 1960s the Deceased, who was a builder, developed a small estate of six bungalows at Blackrock, County Louth, which came to be known as Wavecrest Drive. When he had the development completed he had a plot of land which lay between the rear of some of the bungalows and the sea shore left over.
At this point, I digress to address the confusion which the documents which have been put in evidence create. On the basis of the most recent certified copy of Folio 12029 put in evidence (certified as of 29th September, 2005), that folio relates to part of the townland of Haggardstown, comprising 0.1518 hectares, equivalent to just over one-third of an acre. The Deceased was registered as owner of these lands in the Land Registry on 1st November, 1967. The lis pendens registered in relation to these proceedings is registered as a burden on the folio. However, when these proceedings were instituted it would appear that there was a larger area registered on the folio, because the copy of the land certificate put in evidence discloses that an area comprising 0.3200 hectares was transferred off the folio on 30th October, 2003 and is now registered on Folio 24964F, County Louth. On the second day of the hearing a copy of Folio 24964F was put in evidence and this shows that, as recently as 30th October, 2003, Nora Molloy was registered as full owner on that folio, although a sketch map on the planning file suggests that the Molloy interest dates back to 1975. The lis pendens is also registered as a burden on that folio. Why the lis pendens is registered against the land of Nora Molloy, who is not a party to the proceedings, was not explained. The confusion is compounded by two further factors. First, the transfer dated 27th February, 2003 from Mr. McEneaney and Mr. Cumiskey to the plaintiff, to which I will refer later, purports to transfer part of Folio12029 “containing .182 acres, or thereabouts metric measure (sic)” to the plaintiff. The map annexed to that transfer, which was drawn by a building surveyor, gives the area outlined in red as 0.182 acres (equivalent to .0735 hectares). Secondly, the claim for rectification in the plaintiff’s amended statement of claim relates to “portion of Folio 12029”. The final element of confusion is that, while the filed plan in relation to Folio 24964F has not been put in evidence, the filed plan in relation to Folio 12029 as at 29th September, 2005 would suggest that the “sliver”, as one of the witnesses, Mr. John Woods, described it, transferred to Folio 24964F is half the size of the lands remaining on Folio 12029, not twice the size as the area given in the folios would suggest.
The foregoing confusion could have been easily avoided if the plaintiff had produced a map of the disputed plot based on an up to date ordnance survey map and had related it to the relevant Land Registry folio, which appears to be Folio 12029, as it now is. For present purposes I am proceeding on the basis that the plot of land in dispute, which I will refer to as the disputed plot, is the area depicted on the aerial photograph put in evidence, which is bounded on the west by a hedge separating it from two bungalows in Wavecrest Drive, on the east by the seashore, on the north by a row of conifers, which I assume separates it from Nora Molloy’s back garden and on the south by a “wireless” post and wire fence. I am also assuming that this plot is registered on Folio 12029 in the name of the Deceased, but that it comprises less than one-fifth of an acre.
Returning to what happened in 1975, I am satisfied on the evidence that around April, 1975 the Deceased orally agreed to sell the entirety of the disputed plot to Mr. Cumiskey and Mr. McEneaney on the basis that it would be divided lengthwise from west to east, so that Mr. Cumiskey would get the northern half together with an entrance and Mr. McEneaney would get the southern half less the entrance. Each area would have been capable of accommodating a mobile home. Each agreed with the Deceased to pay IR£300 for his take.
I am also satisfied on the evidence that shortly after the agreement was reached some works were carried out on the disputed plot to render it suitable to take two mobile homes. Some levelling work was done and in late April, 1975 a few consignments of gravel were put on the land. When that work had been done, at the end of April, 1975 Mr. Cumiskey, with the assistance of the Deceased, attempted to bring a mobile home onto his portion of the disputed plot. The residents in Wavecrest Drive obstructed entrance to the disputed plot. Garda Igoe was called and the attempt was abandoned. However, that night or the next day, probably by stealth, Mr. Cumiskey succeeded in putting his mobile home on his portion of the disputed plot. I think the probability is that the mobile home was in situ for over two years, as Mr. Cumiskey testified, and that Mr. Cafferty was mistaken in his recollection that it was there for only three or four weeks. Nothing turns on this conflict, however.
What happened immediately after the mobile home was brought on the site was that the residents in Wavecrest Drive complained to the planning authority, Louth County Council. An enforcement notice under the then in force s. 31 of the Local Government (Planning and Development) Act, 1967 was served on Mr. Cumiskey, as occupier, and on the Deceased, as owner, to compel removal of the mobile home. Following non-compliance, proceedings were initiated in Dundalk District Court. It is not clear what the outcome of the proceedings was. In any event, some time in 1975 Mr. Cumiskey applied to Louth County Council for planning permission for “retention of caravan on site” at Haggardstown, Blackrock”. On 29th June, 1976, Louth County Council issued a notice of decision to refuse planning permission on the ground that the area was zoned for recreational use, which had been the consistent policy of the planning authority since the early 1950s to retain it as a public open space. Mr. Cumiskey appealed to An Bord Pleanála. The appeal was determined against him on 2nd June, 1977, when An Bord Pleanála refused the permission on the ground that the site formed part of a prominent headland overlooking the foreshore and that a caravan on the location would be detrimental to the visual amenities of the area. The zoning for recreational use was considered reasonable. Mr. Cumiskey’s evidence was that when he was informed of that decision, he removed the mobile home from the disputed plot. I accept his evidence on this.
I am satisfied that the actions of Mr. McEneaney and Mr. Cumiskey in April, 1975 and Mr. Cumiskey’s actions thereafter were referable to the fact that there was an oral agreement between them and the Deceased to purchase the disputed plot. The real issue in this case is what impact the opposition of the residents in Wavecrest Drive and, ultimately, the refusal of planning permission by An Bord Pleanála had on that agreement. In addressing that issue it is necessary to consider what else Mr. McEneaney and Mr. Cumiskey did on foot of the agreement.
It is clear on the evidence that Mr. Donal McArdle, a solicitor practising in Dundalk, acted for the Deceased in connection with the transaction. Mr. McArdle subsequently became a judge of the District Court and he has been dead for a long number of years. The firm of Patrick Quinn & Co., solicitors practising in Dundalk, acted for both Mr. McEneaney and Mr. Cumiskey and, in particular, in 1975 Mr. Roger MacGinley was dealing with the matter for them. Mr. MacGinley is still practising as a solicitor in Dundalk. He was not called as a witness.
Mr. Cumiskey’s evidence was that he paid the agreed sum of IR£300 in cash to Mr. MacGinley’s office, Patrick Quinn & Co. He was under the impression that Patrick Quinn & Co. were the Deceased’s solicitors but that patently was not the case. He received a receipt for the money from Patrick Quinn & Co. His evidence was that that receipt referred to the money and the size of the disputed plot he was acquiring. The receipt was not forthcoming at the hearing because later, around 1999, Mr. Cumiskey gave the receipt to the plaintiff. The plaintiff’s evidence was that he brought the receipt in to Mr. MacGinley to find out more about it. When he called some time later, the receipt had been mislaid.
Mr. McEneaney’s evidence was that he paid the sum of IR£300 by cheque. He was able to produce the cheque stub, for what it was worth, which suggested that the cheque was dated 2nd April, 1975 and was for IR£300. Mr. McEneaney’s evidence was that his wife wrote the cheque and that the payee was the Deceased. He testified that he brought the cheque to the office of Mr. McArdle and that he gave it to a girl who was there. It occurred to me that Mr. McEneaney’s recollection on that point might not be correct because Patrick Quinn & Co. were acting for him, as correspondence which emanated subsequently makes clear. Moreover, Mr. McEneaney testified that he gave two pieces of paper which the Deceased gave him, which I understand to have been plans of the two sites carved out of the disputed plot, to Patrick Quinn & Co. However, the defendant seems to have accepted Mr. McEneaney’s evidence on that point.
The items of correspondence from Patrick Quinn & Co. which Mr. McEneaney and Mr. Cumiskey possessed and which were put in evidence do corroborate the existence of an oral agreement between the Deceased, on the one hand, and Mr. McEneaney and Mr. Cumiskey, on the other hand, in 1975. The earliest letter put in evidence was a letter of 26th August, 1975 from Patrick Quinn & Co. to Mr. McEneaney telling him that they had received a contract from the Deceased’s solicitors and asking him to call at his convenience. That letter would suggest that, while a deal had been done, the intention was that there would be a formal contract. It is not clear whether a formal contract was executed. Mr. McEneaney’s evidence was that he could not say that he went in to sign a contract. Chronologically, the next letter is a letter dated 11th March, 1977 from Patrick Quinn & Co. to Mr. Cumiskey and his wife, the heading of which refers to a transaction involving the Deceased and the addressees in relation to a plot of ground at Haggardstown. In the letter the addressees were asked to call to the office some days later to sign the sub-division form, which obviously was the form on which the consent of the Land Commission to sub-division pursuant to s. 12 of the Land Act, 1965, which would have been necessary at the time, would have been applied for. There was a further letter of 8th June, 1977 from Patrick Quinn & Co. to Mr. Cumiskey advising him of the result of the appeal to An Bord Pleanála and pointing out that it marked the end of the procedures which would be open for practical purposes. Mr. Cumiskey was asked to get in touch with the office.
The first two items of correspondence suggest the existence of an ongoing conveyancing transaction. However, it is not clear on the evidence whether contracts were signed or what arrangements were made in relation to the purchase money between the office of Patrick Quinn & Co. and the office of Donal McArdle. What is clear is that the position of the Deceased at all times was that he did not receive the purchase money. Notwithstanding the refusal of planning permission, the conveyancing files in both offices seem to have remained open after 1977. The last item of correspondence put in evidence was a letter dated 20th October, 1981 from Patrick Quinn & Co. to Mr. McEneaney referring to the transaction from the Deceased to him and the transaction from the Deceased to Mr. Cumiskey. In the letter it was stated that the office had been in contact with Donal McArdle & Co. regarding the production of a map to be told that Mr. McEneaney and Mr. Cumiskey were to have the map prepared. Mr. McEneaney was requested to contact the office. Again, it is not clear whether anything arose out of that letter. If there were formal contracts entered into, there is no evidence that they were completed and there is certainly no suggestion that either Mr. McEneaney or Mr. Cumiskey got title from the Deceased.
The position on the ground between 1977 and 1999
Mr. Cumiskey’s evidence was that his portion of the disputed plot was dormant for a number of years and he did not do anything in relation to it. Occasionally, if he was in Blackrock, he would go and look at it but it was overgrown. His home was at Tray, Culloville, County Monaghan in 1975 and still is. In the course of cross-examination he did say he believed he owned it, but he said he was not using it and it was of no value to him. He said it was of no interest to him.
The evidence of Mr. McEneaney, who at all material times lived in Dundalk, was quite similar to Mr. Cumiskey’s. He said he had lost all interest in his portion of the disputed plot when it became apparent that he could not put a caravan on it. He was not going to spend money on it. He visited the site occasionally when out walking the dog, perhaps every three to six months. Once he saw a neighbour putting rubbish on it and he asked him to remove it and he did.
The Deceased’s home was within a hundred yards of the disputed plot. He also owned a caravan park in the vicinity. The evidence of the defendant was that the Deceased dumped grass from the caravan park on the disputed plot until about 1987, when the caravan park was developed for housing, and continued thereafter to dump grass from his residence on it. Mr. Cafferty corroborated the defendant’s evidence of a continued use by the Deceased of the disputed plot after the incident in April, 1975. He recollected the Deceased driving onto the disputed plot with a tractor and trailer carrying 40 or 45 gallon barrels, digging a hole, dumping material and covering up the hole. That practice continued until the Deceased closed his caravan park, which Mr. Cafferty testified occurred probably in 1982 or 1983. Mr. Cafferty’s evidence was that he saw the Deceased dumping material on at least three or four occasions. He also corroborated the evidence of the defendant in relation to the entrance to the disputed plot from where the estate road ends immediately to the south of the adjoining house of the Cotter family. The defendant’s evidence was that the gate piers at that point were damaged when a delivery truck reversed and they were rebuilt by the Deceased and that the Deceased hung a gate and that he had a key to the gate. The defendant’s evidence was that this happened about twenty years ago. Mr. Cafferty recollected seeing the Deceased repairing the piers of the gate years after the incident in April, 1975. He also recollected that there was a gate at that point and that there was a chain on the gate. However, the chain was taken off later and then eventually the gate came off. While, as I have already stated, I believe Mr. Cafferty is mistaken in his recollection that Mr. Cumiskey’s mobile home was only on the disputed plot for three or four weeks, overall, I find his evidence to be reliable. Like the other residents of Wavecrest Drive he had a continuing interest in what was happening on the disputed plot. Indeed, in the context of describing the Deceased’s dumping activities, he observed that he did not know which was the greater evil, which I understand to refer to the presence of a mobile home or the dumping activity.
Mr. John Woods, who is a partner in the firm of Woods Ahern Mullen, who are acting for the defendant in these proceedings, testified that he visited the disputed plot with the Deceased eight, nine or ten years ago. Mr. Woods’ recollection was that there was a gate accessing the disputed plot but they did not go in through the gateway between the piers because the area was all overgrown. They crossed over the broken down wire on the southern boundary. The context of that visit was discussions between the owner of adjoining property and the Deceased in relation to the acquisition by the adjoining owner of the disputed plot from the Deceased. However, discussions came to nought.
The plaintiff’s involvement
The plaintiff’s involvement commenced around 1999. At the time he was living in Crossmaglen, County Armagh, where he still lives. He was 75 years of age. He had retired from the building trade, in which he had worked for other people. He had been in receipt of the old age pension since he was 65 years of age, as had his wife. He had no bank account.
Mr. Cumiskey’s evidence was that the plaintiff approached him and asked him to sell his site at Blackrock and he sold it to him for IR£500, representing what he had paid in 1975 and his expenditure on the site. Mr. Cumiskey’s lack of curiosity was quite extraordinary: he neither asked the plaintiff what he proposed to do with the site, nor did he ask the plaintiff how he found out about Mr. Cumiskey’s ownership of it. He did not speak to Mr. McEneaney about the transaction with the plaintiff and he was quite philosophical about the fact that Mr. McEneaney made a better bargain with the plaintiff.
According to Mr. McEneaney, he was approached by the plaintiff who told him he had bought Mr. Cumiskey’s site, that he understood that Mr. McEneaney had the other half and asked would he sell. Mr. McEneaney said he would. They haggled over the price and eventually agreed on IR£1,200.
The plaintiff’s evidence was that his wife is originally from Blackrock and she wanted a chalet there. When he approached Mr. Cumiskey he knew that he had a site but he did not know where it was. He paid Mr. Cumiskey and Mr. McEneaney in Irish pounds – £1,700 between them – with cash he kept in the house. He was not surprised that the disputed plot was going for so little. He did not know anything about the title difficulties.
However, the plaintiff set about getting the disputed plot put into his own name. He instructed Peter McGuinness of the firm of Esther McGahon McGuinness & Company, who are acting for him in these proceedings, in 1999. The plaintiff told Mr. McGuinness that he had paid Mr. Cumiskey and Mr. McEneaney for the disputed plot, neither had a solicitor acting and they had no title. Mr. McGuinness drew up acknowledgements to be signed by both. Mr. McEneaney attended at the office of Mr. McGuinness on 9th September, 1999 and, in the presence of Mr. McGuinness, who witnessed his signature, he signed an acknowledgement to the effect that he had purchased a site from the Deceased, that he had paid the Deceased, but no formal assurance was completed. He also confirmed that he had disposed of his interest to the plaintiff for the sum of IR£1,200, and acknowledged receipt of that money. He confirmed that he would execute a deed of assurance to vest the lands in Mr. Moley. A similar acknowledgement was signed by Mr. Cumiskey but he did not attend Mr. McGuinness’s office. He signed it in the presence of Michael Rice, who is a son-in-law of the plaintiff and resides in Dundalk.
Subsequently, after these proceedings were instituted, the transfer dated 27th February, 2003, to which I have already referred, was executed by Mr. McEneaney and Mr. Cumiskey.
I found the plaintiff’s evidence as to how he came to acquire the interests of Mr. McEneaney and Mr. Cumiskey highly implausible. I think it reasonable to infer that he was fronting for somebody and that the probability is that that person was Michael Rice. Having said that, the plaintiff has acquired such, if any, interest as Mr. McEneaney and Mr. Cumiskey had in the disputed plot.
Implications of the Deceased’s death
What precipitated these proceedings, as pleaded in the statement of claim, was that the Deceased alleged that the plaintiff was trespassing on the disputed plot and threatened proceedings. Some of the correspondence which passed between the plaintiff’s solicitors and the defendant’s solicitors has been put in evidence, but not all of it. The only item of correspondence which I consider it necessary to comment on was a letter of 31st March, 2000 from the defendant’s solicitors to the plaintiff’s solicitors in response to a letter from the plaintiff’s solicitors dated 23rd March, 2000, which was not put in evidence. In the letter it was stated that the defendant’s solicitors had been instructed that the Deceased had furnished a map to Mr. McEneaney and Mr. Cumiskey “showing the lands agreed to be sold” and asking for a copy of the map. The letter stated that the Deceased’s instructions were that he was “only prepared to deal with” Mr. McEneaney and Mr. Cumiskey “on the basis of the map furnished”. If it is this letter which is referred to as the “open correspondence” in the plaintiff’s reply, in my view it is of no probative value as to what happened in 1975 and it certainly does not constitute a sufficient note or memorandum for the purpose of the Statute of Frauds.
Because of the death of the Deceased in January, 2005 the court has only heard one side of what transpired between Mr. McEneaney and Mr. Cumiskey, on the one hand, and the Deceased, on the other hand, in 1975. A statement by the Deceased taken by his solicitor in July, 2001 in connection with these proceedings, which was not signed by the Deceased, has been put in evidence. According to the statement, the Deceased had agreed to sell to Mr. McEneaney and Mr. Cumiskey in 1975, IR£600 was paid to the Deceased’s solicitor, Donal McArdle, but nothing was signed. The incident in which access for Mr. Cumiskey’s mobile home was blocked is referred to and the statement goes on to say that the mobile home never went on the disputed plot, that Mr. Cumiskey was going to apply for planning permission and that that was the last he (the Deceased) had heard of the matter. He never signed anything nor did he ever get any money. That statement is so incorrect on aspects of the matter which are verifiable that, even if admissible, it would be of no probative value. Mr. Cumiskey’s mobile home was on the land and the transaction between the Deceased and Mr. McEneaney and Mr. Cumiskey was generating correspondence between the solicitors as late as 1981. The evidence of Mr. John Woods, who took the statement from the Deceased, was that it was difficult to take instructions from the Deceased because he was deaf. However, his complaint was that he never got the money. Mr. Woods’ assumption, for what it is worth, was that the sum of IR£600 which the Deceased told him was given to Mr. McArdle went back when the deal did not go through.
The Deceased made his last will and testament on 25th May, 1998. He made two specific devises of property, one of his house to one daughter and another of an interest he had in a licensed premises in the town of Dundalk to another daughter. He also specifically bequeathed his car and caravan to a third daughter. He devised and bequeathed the residue of his estate amongst his five children equally. Counsel for the plaintiff tried to make something of the fact that the Deceased did not deal specifically with the disputed plot in his will. In my view, nothing of significance can be deduced from that fact alone.
The disputed plot was returned on the Inland Revenue Affidavit sworn by the defendant for the purposes of Capital Acquisitions Tax on 6th December, 2005 on the basis that it was owned by the Deceased at the date of his death. The value ascribed to the disputed plot, which was described as comprising 1.518 hectares and as being registered on Folio 12029, was €300,000. Mr. Michael Lavelle, an auctioneer carrying on business in Dundalk and Drogheda gave evidence that he gave the valuation for the purposes of the Inland Revenue affidavit. His evidence was that the disputed plot was worth IR£500 in 1975, in 1999 it was worth €200,000, and in 2003 it was worth €275,000. In November, 2005 he valued it at €300,000 for probate purposes and that was a conservative valuation. I found that evidence utterly unconvincing, particularly as I note that the Deceased’s house on a site of .1 hectare was returned on the Inland Revenue Affidavit at €475,000. Mr. Lavelle acknowledged that he did not know how the disputed plot was zoned for planning purposes when he valued it but he valued it on the assumption that it would be possible to get planning permission for a residence on it. Having regard to the evidence, in my view, he was not entitled to make that assumption. On the basis of the evidence, the likelihood of obtaining planning permission to build anything on the disputed plot seems remote.
Submissions on the law
The case made on behalf of the plaintiff at the hearing was premised on Mr. McEneaney and Mr. Cumiskey having agreed to purchase and the Deceased having agreed to sell the disputed plot for IR£600 and the consideration due under that agreement having been fully discharged. On that basis, it was submitted that Mr. McEneaney and Mr. Cumiskey became the beneficial owners of the entire interest, and the Deceased merely retained the legal estate. In other words he was a trustee for the beneficial owners, so that the defendant now stands in his shoes as trustee. The alternative proposition advanced on behalf of the plaintiff was that Mr. McEneaney and Mr. Cumiskey, having been given possession by the Deceased in 1975, have retained possession and have carried out acts consistent with their ownership. They have had the necessary animus possidendi to bar the title of the Deceased, it was submitted, and such title was extinguished by 1987. Counsel for the plaintiff advanced an argument in reply which is not quite consistent with that argument, namely, that even if Mr. McEneaney and Mr. Cumiskey had made no use of the disputed plot after the refusal of planning permission in 1977, that does not alter their status as beneficial owners. No steps were taken to dispossess them. He submitted that, as a trustee, the Deceased was not a person in whose favour time ran under the Statute of Limitations, 1957, because of the definition of “trustee” in s. 2(2)(a).
On behalf of the defendant, it was submitted that, if there was an agreement which is specifically enforceable, the persons to enforce it were Mr. McEneaney and Mr. Cumiskey, not the plaintiff. It was submitted that, insofar as the plaintiff was suing in reliance on the transfer of 27th February, 2003, that transfer was at a gross undervalue, was not adequately stamped and thus was tainted with illegality and the court should not recognise or give cognisance to it. It was further submitted that insofar as the plaintiff’s case for enforceability was based on the plaintiff having partly performed the agreement, the acts of Mr. McEneaney and Mr. Cumiskey in 1975 did not constitute acts of part performance so as to take the case out of the Statute of Frauds. In support of that proposition counsel for the defendant referred to a judgment of this Court (McWilliam J.) delivered on 5th May, 1978 in Philip M. Howlin v. Thomas F. Power (Dublin) Limited (Unreported), in which it was stated that the principle established by the authorities appears to be that, where the party seeking relief in proceedings has taken some step in pursuance of the contract which has left him in such a position that it would amount to a fraud or be inequitable on the part of the other party to rely on the fact that there was no sufficient memorandum of the contract, the case is taken out of the statute and the court will enforce the contract. It was submitted that Mr. Cumiskey did not suffer any prejudice by placing the caravan on the disputed plot, because he removed it subsequently. It was further submitted that the payment of money was not an act of part performance. It is not necessary to comment on the defendant’s submissions on part performance because the position adopted by counsel for the plaintiff in reply was that this is not a case of suing on a contract and seeking specific performance. The plaintiff’s position is that, as successor in title of Mr. Cumiskey and Mr. McEneaney, he is the full beneficial owner of the disputed plot. It was also submitted on behalf of the defendant that the plaintiff should not be afforded equitable relief because he has not come with clean hands, this, in essence, being the illegality argument, and that, as there had been a delay of 25 years in bringing the proceedings, relief should be refused on the ground of laches.
Conclusions
Counsel for the plaintiff objected that the defendant had not pleaded that the transaction under which the plaintiff claims to have derived beneficial title was tainted with illegality. The reason, presumably, was because the transfer of 27th February, 2005 post-dated the defendant’s defence and counterclaim. The defendant could have sought to amend the defence after receiving the transfer on discovery. Clearly an allegation that a contract is tainted with illegality should be specifically pleaded.
Apart from that, I am not satisfied that the case of illegality has been made out. The transfer was stamped ad valorem on the consideration which passed from the plaintiff to Mr. McEneaney and Mr. Cumiskey. As I understand the defendant’s argument, it is that, on the basis of the defendant’s contention that the consideration of IR£1,700 was a gross undervalue, the transfer should have been stamped ad valorem on the value of the property and adjudged duly stamped. I have already indicated that I do not accept Mr. Lavelle’s evidence of valuation. That being the case, and there being no other evidence of valuation, I am not prepared to hold that the transfer was not properly stamped and that the transaction between the plaintiff and Mr. McEneaney and Mr. Cumiskey is tainted with illegality.
Dealing with the case which the plaintiff has made, that it is the beneficial owner of the disputed plot in succession to Mr. McEneaney and Mr. Cumiskey who were the beneficial owners by reason of paying the full purchase money on foot of their agreement with the Deceased, the relevant legal principle is quite clear even if its application to the facts here is anything but clear. The principle was re-stated by the Supreme Court in Coffey v. Brunel Construction [1983] I.R. 36, in which Griffin J. stated (at p. 43):
“… the principles which apply in a case such as this are quite clear and have been followed for more than one hundred years. Where a binding contract for the sale and purchase of land has been made, and the entire purchase money has been paid, the purchaser becomes entitled to the entire beneficial interest in the lands and the vendor becomes a bare trustee for the purchaser. In Rose v. Watson Lord Cranworth said at p. 683 of the report:-
‘There can be no doubt, I apprehend, that when a purchaser has paid his purchase-money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered as the owner of the estate.’
The principles laid down in that case have been universally acted upon since and are now settled law …”
If that principle applied here, so that from, say, April or May, 1975 the Deceased was a bare trustee and Mr. McEneaney and Mr. Cumiskey were the beneficial owners, in my view, if the Deceased had continued in possession adverse to the title of Mr. McEneaney and Mr. Cumiskey, the Statute of Limitations, contrary to the plaintiff’s submission, could have run in his favour. Section 2(2)(a) of the Statute of Limitations, 1957 provides that “trustee” therein does not include “a person whose fiduciary relationship arises merely by construction or implication of law and whose fiduciary relationship is not deemed by any rule of law to be that of an express trustee”. A vendor who is deemed by law to be a bare trustee by reason of receipt of the full purchase money under a binding agreement is a constructive trustee. In Ireland, a constructive trustee can acquire a possessory title against the beneficiary. In consequence, even if the purchase money was paid to and received by the Deceased, if the Deceased was in possession from 1977 onwards to the exclusion of Mr. McEneaney and Mr. Cumiskey he could have barred their beneficial ownership. On the other hand, if Mr. McEneaney and Mr. Cumiskey, having paid the purchase money to the Deceased, were in possession of the disputed plot to the exclusion of the Deceased from 1975 to 1987, the outstanding legal estate in the Deceased would have been barred.
The real difficulty in this case is in determining what the true factual situation was. I have no doubt but that the Deceased verbally agreed to sell the disputed plot to Mr. McEneaney and Mr. Cumiskey on the terms alleged. Moreover, I have no doubt that the Deceased assisted Mr. Cumiskey in getting the mobile home on the disputed land. It would appear that the intention was that there would be a formal agreement executed. Whether that meant that the coming into existence of a binding agreement was postponed until the formal agreement was executed is not clear. What is clear is that, despite the involvement of solicitors on both sides for six years, the transaction was never completed. As to the payment of the purchase money, I accept that both Mr. McEneaney and Mr. Cumiskey parted with the agreed sum. It would appear that, for whatever reason, neither sought nor got a refund. However, I am not satisfied that the Deceased received the purchase money or any part of it. Neither Mr. McArdle, as the solicitor for the vendor, if he received a cheque from Mr. McEneaney (and no evidence was adduced that the cheque was negotiated), nor Mr. MacGinley, as the solicitor for the purchaser, who received cash from Mr. Cumiskey, was likely to part with the money until the transaction was completed. The transaction was never completed. It is not good enough for the plaintiff to assert that the question of the money was a matter between the Deceased and the solicitors. The rationale of the principle on which the plaintiff relies is that the agreed purchase money is substituted for the land in the vendor’s hands. The onus of proving that the Deceased got the purchase money was on the plaintiff and the plaintiff has failed to discharge that onus.
As to who was in possession of the disputed plot from 1977 onwards, it is absolutely clear on the evidence that neither Mr. Cumiskey nor Mr. McEneaney occupied or exercised acts of ownership over the disputed plot of the type that would constitute possession for the purposes of the Statute of Limitations. Apart from that, in my view, neither of them had the necessary animus possidendi. Counsel for the plaintiff referred to the decision of this Court (Barron J.) in Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677. It is worth quoting the passage from the judgment of Barron J. in which he deals with the necessity for animus possidendi. He said (at p. 683):
“Adverse possession depends upon the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only insofar as that, when this factor is present it is easier to hold an absence of animus possidendi.”
Of course no question arises here of either Mr. McEneaney and Mr. Cumiskey, on the one hand, or the Deceased, on the other hand, having some specific purpose for the disputed plot in the future. The importance of the passage is that it points to the fact that the claimant to a possessory title requires a particular state of mind, the intention to possess.
This case is very unusual in that both Mr. McEneaney and Mr. Cumiskey testified that they had lost interest in the disputed plot after 1977. In contrast, the evidence shows that the Deceased did exercise acts of ownership over the disputed plot after 1977. Moreover, the fact that he brought Mr. Woods to see the disputed plot some time in the late 1990s in the context of discussions for a sale to a third party, suggests that he considered himself the owner of the disputed plot and in possession thereof at all times. In my view, he remained the owner thereof until his death.
The only inference which can be drawn from the facts is that both sides considered that the transaction was not worth pursuing when planning permission was refused in 1977 and that it was impliedly terminated, if not expressly. I find it difficult to understand why Mr. McEneaney and Mr. Cumiskey did not seek a return of the monies they gave to the solicitors involved. However, they have recouped that loss from whomever the plaintiff fronts for. That person acquired no title from Mr. Cumiskey or Mr. McEneaney. As he walked into this situation with his eyes wide open he is deserving of no sympathy.
Order
There will be an order dismissing the plaintiff’s claim and vacating the lis pendens.
As I consider that neither injunctive relief nor a declaration is necessary on the defendant’s counterclaim, and as there has been no evidence of any damage suffered by the Deceased or his estate due to the actions of the plaintiff, I propose making no order on the defendant’s counterclaim.
Costs
I do not propose dealing with the costs issue until it is established to the satisfaction of the court whether the disputed plot has a rateable valuation and, if so, what it is.
Approved: Laffoy J.
Kelleher v Botany Weaving Mills Ltd
[2008] I.E.H.C. 417
Judgment of Ms. Justice Maureen H. Clark delivered on the 10th day of December 2008.
1. This action comes before the court as an appeal from the Circuit Court and concerns the ownership of a small plot of leasehold land in the heart of the City of Dublin. The plot of land is adjacent to 33 Emerald Square in the Coombe in Dublin 8 and measures 31 feet in length and 11 feet in width. It comprises a lock up garage to the front part with an open area of 12 to 13 feet in length to the rear. There is no discernible boundary between the land at the rear of the garage and a large area of open ground attached to a factory owned by the Defendant. The dispute between the parties came about in September, 2005 when the Plaintiff, Anthony Kelleher who had purchased an assignment of the plot of land, sought to extend the garage by knocking out the rear wall so as to provide the length necessary to park his truck and trailer. He was prevented from carrying out these works by the Defendants who claimed that he was trespassing on their property. The original application to the Court was brought by the Plaintiff for injunctive relief but at the close of pleadings the case effectively became a claim for adverse possession.
2. The Defendant denies the Plaintiff’s title and claims that it has been in exclusive occupation of the lands for a period in excess of 12 years and has extinguished the title of the Plaintiff to the lands by adverse possession.
3. Where a person with good title brings an action for the recovery of land and the Statute of Limitations is pleaded as a defence, the defendant must prove that the title holder has been dispossessed or has continued his possession of the lands in question for the statutory period. This is the principle to be applied to the evidence called.
The evidence
4. Mr. Peter Lawlor a son of the late John Lawlor was born and brought up in Emerald Square next door to where his father was reared and where his grandmother lived. His grandmother’s back garden was adjacent to and overlapped to some degree the yard attached to the garage used by his father. When the garage was used the family had no reason to go into the yard at the back of the garage apart from rare occasions when repairs were carried out to the galvanised sheeting of the garage roof. This usually happened when children in the neighbourhood had climbed up on to the roof and jumped on it or tried to gain entry or if the galvanised sheets had lifted in a storm. Peter Lawlor particularly remembered that his mother died in 1998 and his father died in 2002 and between that period, he and his brother Frank, carried out repairs to the roof. In order to do this they had to first climb up onto the front portion of the roof using a ladder, carry the ladder across the roof and then lean it on the ground in the back yard which is the subject of these proceedings. He had no reason to take much notice of the yard but on each occasion when he was there, he noticed that it was in its usual bad unkempt condition. He moved out of Emerald Square in 1986 to get married but before that he used the garage every day to store his motorbike. During the period that he lived at home in Emerald Square, his mother had always paid rates on the premises. The back yard was not visible from his parents’ house or from the garage and the only way he could see it was from the roof of the garage. He believed that the window at the back of the garage had long ago been blocked up to prevent break ins. While he used the garage on a regular basis when living in Emerald Square, he had no reason to go into the back yard.
5. Frank Lawlor, brother of Peter Lawlor was also raised in Emerald Square and left when he married in 1986. He described himself as the DIY person in the family and recalled how his father was able to buy the lock up garage from a neighbour Mr. McLoughlin who suffered a stroke. As he had no further use for the garage he sold it to his father. He recalled several occasions when the roof had to be repaired because of kids jumping on the corrugated iron. On each occasion, he climbed onto the roof from the front and put down a ladder at the back where the roof was lower. His understanding was that the land behind was attached to the garage and formed part of the plot purchased from Mr. McLoughlin and that he had a right to be there. It never occurred to him to seek the permission of anyone to gain access to the roof or to place his ladder on the land behind. On the last occasions when he was on the roof he noted nothing different about the land at the back of the garage; it was neglected as it always was. He too recalled fixing the roof between the dates of his mother’s and his father’s deaths. He always carried out the repairs when notified by neighbours of its condition as his understanding was that if anybody fell through the roof that they would be liable and he saw it as his responsibility to keep the roof in repair. His impression was that there was no lawn in the yard at the back when he saw it between 1998 and 2002 and he particularly noted that when they were putting down the ladder the place was thoroughly unpleasant, being strewn with rubbish including human excrement. His recollection is that the roof was fixed on two to four occasions. He denied that landscaping had extended into this area when he last was on the roof. He identified the map attached to the assignment from Dublin Corporation to Thomas McLoughlin and the assignment from Mary McLoughlin as administratrix of the estate of Thomas McLoughlin to his father John Lawlor. The maps attached to the assignment show that land at the back of the garage is part of the plot of land originally assigned.
6. Anthony Kelleher, the assignee and Plaintiff explained that he bought the garage in September 2005 for €18,000 so that he could safely park his long truck and trailer close to where he lived in The Coombe and that his only interest in buying the property was the length of the plot on the map. He never inspected the plot at the back as he was told that it was included in the take and he relied on the map attached to the title deeds. In September 2005, he broke down the wall of the back of the garage with the intention of extending the structure to facilitate the storage of his truck and trailer but was immediately challenged by Botany Weaving. A skip was then placed by the Defendant on the plot of land to prevent him from carrying out building works and his trailer was pushed back into the garage. He has been unable to use the garage and plot for the purpose for which he purchased the property.
7. Jonathan Hackett on behalf of the Defendant gave evidence that he was a director of the company Botany Weaving Mill Ltd. that bought the lands in 1988 identified on a map handed into court. At the time of purchase, the factory was in a derelict condition, the roof had caved in and the surrounding lands were full of boulders and rubbish and constituted a dumping ground. The map of the defendant property indicates a very extensive ground area on two sides of the factory with the plot in question in the extreme south western corner. Following the purchase he restored the buildings and refurbished the grounds by having the rubble and rubbish cleared, bringing in topsoil and landscaping part of the area for parking. The entire area was laid in grass within a year of the sale in or about 1989. He had always assumed that the company owned the entire yard up to the wall at the back of Emerald Square. He had never seen the Lawlor leasehold agreement or the deed of assignment with the map attached to it and was unaware that the plot was attached to the garage. When he purchased approximately 45,000 square feet from the liquidator of Malboro Menswear, the owners of the former factory premises, he did not at any time consider the ownership of the miniscule area comprising the disputed plot. He understood that he owned everything within the boundaries of the factory and he rejected the idea that there was ever any discernable difference between the appearance of the parcel of land over which Mr. Kelleher lays claim and the area which the factory maintained. In particular, he rejected any suggestion that damp marks rising several feet on the boundary walls were left by recently removed earth and rubbish. He said that the area had been cleaned up long ago as the staff looked out on it at lunch time and had objected to its derelict state. He first became aware of the claim by Mr. Kelleher in September 2005 as prior to the attempted building works he had no idea that anyone claimed ownership to that land or that anyone had carried out any repairs to the roof. He had never seen or been made aware that any persons had been on the plot of land or had placed ladders there.
8. Photographs were produced by Mr. Hackett showing the current state of the premises with well maintained landscaping around an extensive parking area to the front of the factory grounds. The area in dispute is at the very end of an area laid in mowed rough lawn which is outside the landscaped parking area. There was evidence of some graffiti on the boundary walls with the garage. There were large areas of dark staining on the boundary wall with one of the Emerald Square houses and to a lesser extent at the bottom end of the wall at the back of the garage. There was also an area of rough mortar plastering at the foot of the boundary wall. No evidence was called as to who cleared the rubbish from the plot in dispute and when this work was carried out apart from the testimony of Jonathan Hackett that the lands were cleared and seeded in or around 1989.
Findings
9. On the evidence called, there is clearly a dispute as to when the plot of land at the back of the garage was cleared of rubble then seeded with grass and incorporated into the curtilage of the factory premises. The staining on the walls could be consistent with relatively recently removed earth. The rough mortar could be consistent with efforts to strengthen the base of the wall following removal of a bank of earth. No explanation was provided for this staining or of when the concrete was applied.
10. Maps produced in court by both parties show the area in dispute as forming the natural contours of the plot on which the garage was built and which is contiguous to the garden walls of 32 and 33 of Emerald Square. In other words, the area squares up with the Emerald Square back gardens. However, an ordinance survey urban place map of Emerald Square noted to have been surveyed in 1973 and revised in 1999, depicts the garage as a structure but does not delineate the yard or exclude it from the factory premises confirming that there was never a boundary wall between the garage and the factory.
11. On the basis of this evidence I make the following findings: on the day in September 2005 when Anthony Kelleher attempted to extend the garage at the side of 33 Emerald Square, Botany Weaving Mill Ltd was in occupation of all the land at the front of their factory including the plot in question. It is clear that the only use Mr. Kelleher’s predecessors in title ever made of the plot in question was for necessary access to maintain the garage and that this did not occur frequently the last times being on two to four occasions between 1998 and 2002. It was also clear that unless they were carrying out repairs, they had no view of the plot of land.
12. The issues which I have to decide is whether the acts of Botany Weaving in clearing the rubbish from the disputed plot and maintaining it in grass amounted to exclusive occupation, adverse to the owners of the land and if so, can adverse possession occur in circumstances where they were unaware that the lands belonged to someone else. In other words was Botany Weaving’s erroneous belief that the lands were theirs sufficient to amount to an animus possidendi or intention to possess to establish adverse possession bearing in mind that the burden is on the person claiming such title? If animus possidendi is established have they established 12 years continuous exclusive occupation such as to defeat the title of Peter and Frank Lawlor and thus the Plaintiff?
The law
13 The parties furnished the court with a quantity of recent law on the issue of adverse possession being Durack Manufacturing v. Considine 27/05/1987 Unreported Barron J., Gleeson v. Feehan 2000 IEHR 118 29 May 2000 Finnegan P., Tracey Enterprises Macadam Ltd. V. Drury Unreported 24 November 2006 Laffoy J., Dunne v. Iarnrod Eireann IEHC 7/9/2007 Clarke J.
14. The law in relation to possessory title and the extinguishment of paper title by the operation of the provisions of the Statute of Limitations, 1957 has been extensively explored in two of the cases furnished. The pertinent sections of the Statute of Limitations Act 1957 to this type of action are sections 13(2), 18(1) and 24:
S.13(2) which provides that no action to recover land shall be brought by any person, other than a State authority, after the expiration of twelve years from the date on which the right of action accrued to that person.
Section 18(1) which deals with when the right of action to recover land accrues and provides that no right of action to recover land shall be deemed to accrue unless the land is in the adverse possession of some person in whose favour the period of limitation can run.
Section 24 which provides that at the expiration of the period fixed for a person to bring an action to recover land, the title of that person to the land shall be extinguished.
15. Laffoy J. examined all relevant judgments on these provisions in Tracey Enterprises Ltd Macadam v. Drury and I adopt her analysis in quoting from her examination of the existing law.
16. “The meaning of “adverse possession” in s. 18 of the Act of 1957 was explained by the Supreme Court in Murphy v. Murphy [1980] I.R. 183 in the following passage at p. 202 of the judgment of Kenny J.:
“Before the year 1833 the common law had engrafted the doctrine of non-adverse possession on to the earlier Statute of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with recognition of his title, i.e., adverse possession, and so there had to be an ouster. The doctrine of non-adverse possession was abolished by the Real Property Limitation Act, 1833, in which the words ‘adverse possession’ were not used …. The use of the words ‘adverse possession’ in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In section 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a licensee or a person in possession as a servant or caretaker or a beneficiary under a trust …”
Later in his judgment Kenny J. referred to the decisions of the English Court of Appeal in Wallis’s Holiday Camp v. Shell-Mex [1975] Q.B. 94 and Treloar v. Nute [1976] 1 W.L.R. 1295, commenting that in each of those cases the question was whether the person in possession of lands had been in adverse possession. He then observed that this is ultimately a question of fact.
In Seamus Durack Manufacturing Limited v. Considine [1987] I.R. 677 Barron J., having referred to the judgment of Kenny J. in Murphy v. Murphy, stated that each case must be decided on its own facts and continued (at p. 683):
“Adverse possession depends on the existence of animus possidendi and it is the presence or absence of this state of mind which must be determined. Where no use is being made of the land and the claimant knows that the owner intends to use it for a specific purpose in the future, this is a factor to be taken into account. The principle has relevance only insofar as that when this factor is present it is easier to hold an absence of animus possidendi.”
n relation to the type of acts of use and enjoyment which will amount to possession, the following passage from the judgment of Lord O’Hagan in The Lord Advocate v. Lord Lovat (1880) 5 App. Cas. 273 at p. 288 has been cited frequently by this Court with approval in recent years (for example, by Costello J. at first instance in Murphy v. Murphy, at p. 193, and by Gilligan J. in Keelgrove Properties Limited v. Shelbourne Development Limited in his unreported judgment delivered on 8th July, 2005):
“As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.”
The practical application of the principle stated in that quotation may be observed in Doyle v. O’Neill (the High Court, Unreported, 13th January, 1995) in which O’Hanlon J. stated:
“In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.”
17. It is quite clear from this analysis of the authorities going back over 120 years that in every case where adverse possession is in issue, the fact of possession requires an examination of the nature of the land and the nature of the occupation before possessory title can be established. Application of the same legal principles can lead to differing outcomes as occurred for example, in Doyle v. O’Neill 13.01.95 and in Griffin v. Bleithin [1999] 2 ILRM 182 where similar types of occupation brought differing results depending on their own special facts.
18. The authorities relating to adverse possession were again examined and applied by Clarke J in Dunne v. Iarnrod Eireann IEHC 7/9/2007 where he found that the general principles were best summed up in a passage from the judgment of Slade L.J. in Powell v McFarlane [1979] 38 P&CR 452 at 470 where the following is set out:-
“1. In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prima facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title of claiming through the paper owner.
2. If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (“animus possidendi”).
3. Factual possession signifies an appropriate degree of physical control. It must be a single and conclusive possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land cannot both be in possession of the land at the same time. The question what Acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed.”
19. Clarke J in Dunne v. Iarnrod Eireann concluded that the authorities indicate that “the nature of the possession which must be established is one which must be objectively viewed by reference to the lands concerned and the type of use which one might reasonably expect a typical owner to put those lands to” and that the correct approach should be on the basis that the onus is on the person asserting possessory title “to establish a sufficient degree of possession of the land with the requisite intent”.
20. He accepted the following as a correct statement of the law the dictum of Slade LJ in Power v. McFarlane at p472 that “an owner or other person with the right to possession of land will be readily assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of an owner in possession will be found to negative discontinuance of possession.”
21. The recent decision in Gleeson v. Feehan (29 May 2001 unreported) Finnegan P. confirms that quite minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not dispossessed.
22. Coming then to the facts of this case where the managing director of the Defendant company was firmly of the belief that his company was the paper title owner of the plot in question and whether this misplaced belief affected animus possidendi. There is a paucity of Irish law on relevant law regarding such mistaken belief and the proposition that a person can be in adverse possession while believing that that he is the owner. In Williams and Anor. V. Usherwood Court of Appeal 1983. Cumming-Bruce LJ stated that:
“Enclosure has always been regarded as strong evidence supporting animus possidendi, and the fact that the adverse possessor’s belief of ownership is founded on a mistaken premise does not help the paper owner.”
Halsbury’s Laws of England quotes this decision as an authority that adverse possession can occur even though the possessor was the legal owner. However, an examination of the details of Williams v. Usherwood exposes facts quite different to those in this current case and raises doubt as to the validity of the proposition. In that case both the original owners who were neighbours and their successors in title acted on the mistaken belief that one neighbour owned all of what in their title deeds was a shared driveway to their respective houses in a residential estate. Each party erroneously believed that the adjoining property owner merely enjoyed a right of access over the driveway to maintain and repair their residence, gutters, eaves and drains. The first neighbour had built a garage on the shared driveway, caused it to be expensively paved, had parked two or three family cars there for upwards of forty years and most important, had enclosed the driveway. The issue of the mistaken belief paled into insignificance when viewed against these acts and the abandonment by the other parties of any use of the once shared entrance. It is interesting that the law lords of the Appeal Chamber relied on the dictum of Lord O’Hagan in the decision of Lord Advocate v. Lord Lovat in deciding on the special facts of the case in favour of the neighbour who had enclosed the driveway and in refusing relief to the Plaintiff who had relied on the Defendant’s erroneous belief. I do not believe therefore that Williams v. Usherwood is any authority for the principle that animus possidendi can coexist with a belief in ownership. Logically, if a person in occupation believes that he is rightfully there, he cannot have the intent to dispossess.
Conclusion
23. On the basis of these authorities and applying the principles to the facts of this case, I am not persuaded that the use of the disputed plot by the defendant company when viewed objectively, constituted adverse possession or possession which was inconsistent with the title of the true owner. The clearing and tidying up which was carried out by the Defendant Company was without doubt for its own visual benefit in providing continuity to the lawned area and to abate and minimise the dumping nuisance to their own land. I do not accept that the works were carried out to defeat the title of the true owners any more than the mowing and maintaining of common areas or roadside verges is carried out with intent to acquire title. In my view the grassing and tidying was not of such a nature as could leave “no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place.” Doyle v. O’Neill
24. On the particular facts of this case, the tiny plot of land had never been marked off from the rest of the factory premises. There was no wall or other boundary to demarcate the plot from the other open ground. Thus, when the derelict factory premises were purchased in 1988 with grounds described as a “dump”, that state also extended to the plot. The plot itself had not been used other than to provide necessary access for repairs to the garage. The nature of the particular urban area with its risks of vandalism and theft meant that the garage was built with minimal access. It was however possible to develop the plot by extending the garage without encroaching onto the defendant lands as the walls of any extended structure would form a new boundary. I have therefore asked myself if the acts relied on by the defendant as acts of exclusive possession, were in all the circumstances inconsistent with the enjoyment of the land by the plaintiff’s predecessors in title. If the area had been cleared of urban detritus, flattened and sown in grass during the period 1998 and 2002, would the Lawlor brothers standing on the plot while repairing the roof necessarily conclude that the improved state of the plot indicated that some person was in adverse occupation of their plot? I am not convinced that they would. In any event, I am not satisfied that the Defendant has established continuous exclusive occupation for a period in excess of 12 years as during that time the Plaintiff’s predecessors continued with their normal sporadic use of the plot to service the repairs to the garage.
25. I will make an order that the Plaintiff is the lawful owner of the plot at the rear of the garage at 33 Emerald Square in the terms of the Plaintiff’s Civil Bill. The Plaintiff is entitled to his costs.
Mahon v Reilly
[2010] IEHC 103
JUDGMENT of Ms. Justice Dunne delivered on the 26th day of March, 2010.
These proceedings come before the court by way of Circuit Appeal by the plaintiff herein, who failed before the Circuit Court to establish a claim by way of adverse possession to certain property at the rear of his premises. The plaintiff is the owner of premises at 19A Bangor Drive, Crumlin, Dublin 12 and the defendants reside at Bangor Drive, Crumlin, Dublin 12. The plaintiff in the Endorsement of Claim on the Civil Bill complained that the defendants have encroached and trespassed upon his property since the month of January 2002, and have placed a clothesline upon the property and a trailer and have refused to vacate the plaintiff’s property. The defendants have claimed that they are the legal and beneficial owners of the premises at No. 19 Bangor Drive and that their premises include an area which is to the rear of the premises owned by the plaintiff at 19A.
In order to understand the issues between the parties it would be helpful to describe the layout of the two premises. 19A is a shop premises with a forecourt at the front and alongside the left hand side of the premises runs a laneway. On the right hand side of the shop is the premises No. 19 Bangor Drive. It is a dwelling house and is the home of the defendants. If one looks at the two properties together and in particular if one looks at the footprint of the two properties one could describe them as occupying an area that is wedge shaped with the wider end of the wedge to the front and with the narrower end of the property to the rear.
There is no dispute whatsoever that the defendants have a paper title to the entire of the premises. For ease of reference I propose to refer to the portion of the property in dispute as the “shop yard”.
Two booklets of title were handed in to court relating to the premises at 19A and No. 19 Bangor Drive respectively. Each property shares a common route of title. The original title is derived from a lease of the 30th September, 1935 for 900 years. Ultimately there was an assignment of that lease in 1975 and it appears that a sublease was created on the 17th April, 1979, in respect of that part of the premises which comprises 19A Bangor Drive. The sublease was between Stephen O’Driscoll of the one part and Sean Dowd and Daniel Farrell in respect of “All That and Those the shop premises situate at and known as 19A Bangor Drive, Crumlin in the City of Dublin. The defendants acquired their interest in the property under an indenture of lease dated the 25th July, 1979, between Stephen O’Driscoll of the one part and the defendants and one Isabella V. Owens of the other part. As mentioned before there is no dispute between the parties that the defendants acquired a paper title to the property at issue in these proceedings. There was no reference to the sublease in the assignment to them. A number of other transactions took place over the years in respect of the premises known as 19A Bangor Drive. The defendants continue to reside in the premises at No. 19 Bangor Drive.
The plaintiff in these proceedings gave evidence that he purchased No. 19A in 1998 from Stephen Perry. There was a forecourt, the shop premises and from the shop premises there was a door at the rear which exited into the shop yard. The yard was narrow up close to the shop and widened out at the back. There were two means of access to the shop yard – one through the shop and the second through the laneway to the left hand side of the premises. On the right hand side of the shop yard was a brick wall of approximately 6ft. in height dividing 19 and 19A. That wall started at the rear of the shop and went all the way down the site. It was constructed of 4in. blocks. In the yard there was an outside toilet. The door between the shop and the yard was a wooden door like a hall door. There were two bolts on the inside of the door. Access from the laneway to the yard was by means of an up and over garage door. It could not be opened from the lane but only from the yard. He described how the yard was used by him. He stored a trailer and other bits and pieces there. He described how he was present on the premises every day. His business is a heating and plumbing business and from time to time he would store old boilers and pipes in the yard. He kept his trailer up at the wider end of the yard. Between 1998 and 2002 there only be his employee and himself in the yard. Now he has no access whatsoever to the yard.
Having been in the premises for some time he received an enforcement notice from the local authority requiring him to remove the wall dividing 19 and 19A as it was unsafe. He did so some time around Christmas 2001 and when he returned to work after Christmas the area at the rear of the shop where the door was, was blocked up. In addition the gates to the yard were also blocked.
In cross-examination, he confirmed that he took possession of the premises in 1998 and was asked whether he had any conversation with Mr. O’Reilly at that stage. He was also asked about letters which were said to have been written to him by Mr. O‘Reilly on an annual basis from the time that the plaintiff took possession of the premises in which Mr. O’Reilly asserted his ownership of the yard. The plaintiff denied receipt of any of those letters. The plaintiff was asked about whether a portion of the wall had fallen down and he responded to the effect that some three to four blocks had fallen down but ultimately he confirmed that in fact a more significant portion of the wall had fallen down and it was necessary then to take down the remainder the wall on foot of the order of the local authority. He also confirmed that in addition to the up and over garage door he had described, there was a small door in the wall as well. Asked was there access through that smaller door he indicated that it had been bolted from the inside and that he never used it. He denied that the defendants freely used the shop yard for the purpose of parking bicycles there or leaving a small trailer in the yard. He also denied that there had been a clothesline in the yard prior to January 2002, when he was excluded from the yard or that the defendants had stored anthracite in the lower part of the yard. He disagreed that he had not enjoyed exclusive possession of the yard.
Vincent Glavin, an auctioneer in Crumlin gave evidence describing the yard. He confirmed that there were double doors going on to the laneway and that he was involved in a sale of the property at 19A at one stage and understood that he was selling the shop and the yard.
Christine Gaynor then gave evidence. Her son had had an interest in the property at 19A at one stage. He was running a business in the premises and she was present in the premises almost every day over a seven or eight year period. Her son had obtained a Deed of Assignment of the lease on the 21st of December, 1987 and remained in the premises until approximately 1994 when the property was transferred to Stephen Perry. She was aware that the property had been sub divided by Stephen O’Driscoll in 1979. She also described the structures built in the yard and confirmed that there were a number of ways to access the yard, namely through the shop, the double door and the little door in the wall with access via the lane. She stated that the little door was never used. There were two bolts on that door on the inside of the door. The double door could only be opened from the inside. She said that the yard was used for storage. She added that no one else used the yard. She was asked whether her son had received any letters from the O’Reilly’s and said that her son did not get any such letters. She was not aware of any visit by her son and Mr. O’Driscoll to the O’Reilly’s. She was adamant that there was no clothesline in the yard and that the yard was not used by anyone else.
Stephen Perry gave evidence that he acquired the interest of No. 19A Bangor Drive. He obtained his assignment from Mr. Gaynor the witness’s son. He sold on the premises in 1988 to the plaintiff in these proceedings. When he went into occupation of the premises he also had access to the shop yard. Again he described the means of access. He said that the small door to the left of the yard was never opened. He said that there was a toilet in the yard and then there was a double door which was constructed out of wood. He too confirmed that the doors leading from the yard onto the lane were bolted from the inside. He was the only person who had access to the yard. He said that he had little use for the yard.
In cross examination he denied the receipt of any letters which were supposed to have been sent to him.
Mr. Perry confirmed that he did have some discussions with Mr. O’Reilly, but he denied asking for a lease of the yard from Mr. O’Reilly. He denied that there were items such as a clothesline or bicycles or coal stored in the yard by the O’Reilly’s. He stated that the O’Reilly’s were never on the premises.
Mr. Anthony Gallagher gave evidence. He is an architect and he gave evidence in relation to certain maps that had been prepared. He also gave evidence into an approximate costing of restoring the shop yard having regard to the work that has been done to the yard by the O’Reilly’s since January 2002.
Edward O’Reilly, the first named defendant, then gave evidence. It appears that the O’Reilly’s moved into the premises in May 1979, although the indenture of assignment is dated the 25th July, 1979. Nothing turns on that point. He acquired the premises from Stephen O’Driscoll having first commenced negotiations with Mr. O’Driscoll in late October, 1978. At the time that he was in negotiation for the purchase of the premises, he visited the premises at No. 19 Bangor Drive on a number of occasions. There was nothing in the yard and there was no wall between 19A and No. 19 at the time. He moved into the premises late at night on the 4th May, 1979 and discovered the following morning that 90% of what he described as his back garden had been covered by a shed. The shed was visible in one of a number of photographs which had been handed into court during the course of the hearing. Mr. O’Reilly explained that he had a row with Mr. O’Driscoll in relation to this state of affairs and that he got no satisfaction from Mr. O’Driscoll. He went to a solicitor but he explained that he did not have money to go to court. He did apparently receive some advice in relation to the writing of a letter and it is as a result of that advice that he wrote letters to the various occupiers in possession of No. 19A, in the following terms:-
“We are the owners of the garden at the rear of the house and shop, 19 and 19A Bangor Drive, Crumlin, Dublin 12. We purchased it together with the house, from Stephen O’Driscoll and hold title to it by Deed of Assignment dated 25th July, 1979.”
The purpose of the letters was to inform the occupants of 19A Bangor Drive that the defendants were the owners of the rear of the premises.
The shed that covered the rear of the premises was removed on foot of an enforcement order from the local authority some time in the early ’80s. The roof and timbers were removed. However the wall between 19 and 19A that had supported the roof and timbers was left as it was. Mr. O’Reilly described in evidence that he and his wife and family made use of the shop yard by erecting a clothesline in it. There was also a small trailer stored there, it was used for the purpose of storing anthracite in a bin which was located in that area and from time to time deliveries of oil were made to No. 19 Bangor Drive by means of a pipe brought in over the shop yard.
Subsequently towards the end of 2001 a section of the wall fell down into the rear of No. 19 Bangor Drive. The plaintiff took the remainder of the wall down and after the wall had been taken down, Mr. O’Reilly said that he and his son removed the remains of the wall. He then extended a shed at the rear of his property and the shop yard and sealed off the door from the rear of the shop into the shop yard. He described how the premises has been used since the wall came down. In cross examination, Mr. O’Reilly described having to gain access to the part of the premises in dispute by going out of the rear of his premises and around into the laneway. It was stated by him that it was possible to go in through the small door which was rotten and he denied that there were any bolts on the door. He stated that he never saw anyone in the shop yard and that there was never anybody there. Prior to the plaintiff becoming entitled to possession of the premises at 19A his predecessors in title never objected to the use of the premises by Mr. O’Reilly. Letters were sent to them, just as letters were sent to the original owner of the whole of the property and subsequent owners of 19A. He denied ever seeing either Mr. Gaynor or his mother Mrs. Gaynor in the premises. He gave evidence that he told Mr. Perry who purchased the property in 1994 and who was there until 1998 that there was a problem with their use of the yard. According to Mr. O’Reilly, Mr. Perry just left and did nothing else in relation to the matter. Subsequently when the wall came down he erected new doors on the premises. He was never excluded from the premises.
Mrs. Theresa O’Reilly then gave evidence. Her evidence was similar to that of her husband. She confirmed that the roof was taken off the shed in 1983. It was only at that stage that the O’Reilly’s put in a washing line. She said that she used the washing line on an almost daily basis and that nobody bothered her in doing so. Asked how it was possible to gain access to the site she said that the doors onto the laneway from the site were rotten. She explained that her children used to play in the area of the yard and they stored their bikes there.
In cross examination she confirmed that she and her husband were annoyed at not having the use of the yard area. As a result of the way in which the premises had been divided by Mr. O’Driscoll, there was little space to the rear of their own property. Asked about other people using the shop yard, she indicated that she did not see Mr. Gaynor or Mr. Perry when they were in occupation. She said that she was in and out of the premises all the time and never saw anyone there. She described the yard area as being a place that was wide open because the doors were rotten.
Aidan O’Reilly, the son of the defendants also gave evidence. He described moving into the premises and how there was a shed erected over the area of the back garden when they moved into the premises. He said that he was the person who put the washing line up in 1982 and no one stopped him. He described storing his bicycle in the rear of the shop yard. He said that he was on the premises every day. He was also aware of the letters being sent by his father and went on to say that it was he who posted the letters. In the period around Christmas 2001 or early 2002, some 20ft or so of the wall came down in one piece and approximately two thirds of the wall remained. It was taken down subsequently by the plaintiff. He said that no one had ever complained about the use of the yard by the O’Reilly family. He stated that the small door opening on to lane from the shop yard was never bolted. Finally he claimed that the WC which was in the back yard was disconnected in 1982. The structure which had contained that WC was removed after the wall came down in 2002.
Legal submissions
As I mentioned at the outset, there is no dispute between the parties that the defendants have a paper title to the entire of the yard to the rear of 19A. It is the plaintiff’s case that between 1979 and 2002 the yard to the rear of the shop was included in the premises of No. 19A. The evidence given on behalf of the plaintiff is that the occupiers of 19A always had exclusive use and possession of the yard. It is clear from the evidence that there was a wall dividing the shop yard to the rear of 19A from rear of No. 19. Although it had been suggested in the course of the evidence that Mr. Perry had sought to purchase an interest in the shop yard area from the O’Reilly’s area from the O’Reilly’s, Mr. Perry denied this.
In the course of the helpful written submissions furnished by the plaintiff, reference is made to the decision of the High Court in the case of Tracy Enterprises McAdam Limited v. Drury [2006] IEHC 381, which examined the jurisprudence in relation to the relevant provisions of the Statute of Limitations 1957. I propose to quote one passage from that judgment at p. 18 thereof where it was stated:-
“The meaning of ‘adverse possession’ in s. 18 of the Act of 1957 was explained by the Supreme Court in Murphy v. Murphy [1980] I.R. 183 in the following passage at p. 202 of the judgment of Kenny J.:
‘Before the year 1833 the common law had engrafted the doctrine of non-adverse possession on to the earlier Statute of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with recognition of his title, i.e., adverse possession, and so there had to be an ouster. The doctrine of non-adverse possession was abolished by the Real Property Limitation Act 1833, in which the words ‘adverse possession’ were not used . … The use of the words ‘adverse possession’ in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In s. 18 of the Act of 1957 adverse possession means possession of land which is inconsistent with the title of the true owner: this inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus it cannot run in favour of a licensee or a person in possession as a servant or caretaker or a beneficiary under a trust . . .’”
This was further commented on by Laffoy J. in that judgment in a further reference at p. 20 of her judgment:-
“The practical application of the principle . . . may be observed in Doyle v. O’Neill (Unreported, High Court, 13th January, 1995) in which O’Hanlon J. stated:
‘In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.’”
It seems to me that at the heart of this case is the fundamental question as to whether the use of the shop yard by the plaintiff and his predecessors in title constituted possession and if so, was it adverse possession in the sense of being possession inconsistent with the title of the true owner.
Nothing in the evidence of the defendants suggests that they enjoyed any use of the shop yard between 1979 and 1982. The evidence on behalf of the defendants is to the effect that a clothesline was erected in the shop yard in 1982 in respect of which they had continuous access and use. It goes without saying that when one talks of occupation adverse to the defendants’ title, one is talking of exclusive occupation by the plaintiff and his predecessors in title. In other words, if it is plainly the case that the defendants were using the premises throughout the period at issue from 1982 onwards then the plaintiff and his predecessors in title could not have had exclusive use of the premises and in those circumstances, the plaintiff could not have obtained a title to the shop yard by means of adverse possession.
There is a conflict of evidence as to the issue of exclusive use. Mrs. Gaynor, Mr. Perry and the plaintiff have all given evidence that the defendants did not have access to the shop yard. They have described the doors giving access to the premises as having been bolted. Those bolts could only be opened from the inside of the yard. It has never been suggested by the defendants that they gained access other than through the doors opening onto the laneway. Mrs. Gaynor was, as mentioned, present during the time that her son was in occupation of the shop premises. She described how she was regularly at the premises. Mr. Gaynor went into occupation of the premises pursuant to a Deed of Assignment dated the 21st December, 1987. Mr. Perry has described how he went into occupation of the premises following a Deed of Assignment dated the 19th October, 1994. The plaintiff went into occupation of the premises pursuant to a Deed of Assignment dated the 22nd May, 1998. Mrs. Gaynor and Mr. Perry in the course of their evidence denied any use of the shop yard by the defendants. They denied the existence of a clothesline in the yard and in truth it is difficult to understand how that could be missed if, as Mrs. O’Reilly stated, she was in and out of the yard on a daily basis for the purpose of using a clothesline.
There is no doubt that following the removal of the wall over the period around Christmas 2001, the O’Reillys had access to the yard from their own property and further there is no doubt that they used that access to block up the rear access to the yard from the shop premises and they used that access to change the doors leading on to the laneway so that in January 2002, when the plaintiff returned to the property, he was excluded from the shop yard. I cannot understand why, if the defendants always had access to the premises as they have claimed in evidence and always made use of their access to the premises in the manner they described, they waited until the wall came down to exclude the plaintiff. According to Mr. O’Reilly and indeed all of the defendants, the defendants always asserted their right to their ownership of the yard and did so by using the yard, but also by writing letters on an annual basis to the occupiers of 19A. It is very difficult to understand, given the strength of feeling, why the O’Reillys did not exclude the occupiers of the shop premises from the yard when they always had access to the yard as is claimed. This seems to me to be very strange, to say the least.
As I have said before, the evidence of Mrs. Gaynor and Mr. Perry contradicts the evidence of the defendants. Given the situation that I have described and in particular, the fact that it was only when the wall between 19 and 19A Bangor Drive came down that the O’Reillys took steps to exclude the plaintiff, I find it very difficult to accept the evidence of the defendants that they were at all times from 1982 up to 2001 exercising any rights of access to the shop yard. I prefer the evidence of Mrs. Gaynor, Mr. Perry and the plaintiff to the effect that the O’Reillys never made use of the yard during their occupation of the shop premises.
I can understand that the O’Reillys felt a sense of grievance when they became aware of the fact that the original conveyance of the property to them contained a map which showed their entitlement to the shop yard. However, from the date that they moved into the premises until 2002, it is clear from the evidence that the owners and occupiers of 19A Bangor Drive were the ones who had exclusive use of the shop yard. I have little doubt that the O’Reilly’s complained to Mr. O’Driscoll about the erection of the shed in the yard in 1979 and that they got little satisfaction from them. I find it difficult to understand how, if the position was as contended for by the defendants, they would have taken no steps whatsoever to attempt to recover possession of the shop yard by legal proceedings. I know that in evidence Mr. O’Reilly said that this was not possible in 1979 because of a lack of funds. That does not explain inaction throughout the period since then.
Mr. O’Reilly described writing letters on a regular basis to the occupiers of No. 19A. There is a dispute as to the receipt of those letters. Even if those letters had been received by the occupiers for the time being of the premises, those letters are not of themselves sufficient to prevent the statute of limitations from running against the O’Reillys.
Finally, I should add that it is interesting to note that the Enforcement Notices referred to in the course of the evidence relating to the removal of the shed in 1982 and the removal of the wall in 2001/2 were sent to the occupier of 19A. This is consistent with the evidence that the owner of 19A at the relevant time was viewed as the occupier of the shop yard by the local authority.
In all the circumstances of this case I have come to the conclusion that although the defendants clearly have a paper title to the premises comprised in the shop yard at the rear of 19A Bangor Drive, the plaintiff through his occupation and the occupation of his predecessors in title has obtained a title to the shop yard by adverse possession. I will hear the parties further as to the consequences of this decision.
Dolan v Reynolds
[2011] IEHC 334
JUDGMENT of Mr. Justice Henry Abbott delivered on the 11th day of February, 2011
1. This judgment relates to an appeal by the defendant/appellant against an injunction directing him to vacate his ancestral home subject to compensation to be paid for work done. The hearing took place in Trim on the 5th and 6th October, 2009.
Background
2. Matthew Reynolds was the sole registered owner of the property described in Folio 21280 situated at Possexton, Enfield, County Meath. Matthew Reynolds died on the 22nd March 1980 and was survived by his widow, Evelyn Reynolds and five children. Matthew Reynolds died intestate. Evelyn Reynolds extracted Letters of Administration on 28th October, 1980. Under section 67 (2) of the Succession Act, 1965 Evelyn Reynolds became beneficially entitled to two thirds of the estate and the five children became entitled to the other third. The children decided to give their mother their shares in the estate. This was done by the four children who were over 21 and therefore of age through the execution of a deed of Family Settlement. The plaintiff was under 21 years of age, thus her share of the estate was valued and an amount of money representing this share was placed on deposit which the plaintiff withdrew when she turned 21.
3. No assent was ever executed by Evelyn Reynolds vesting the subject property in herself as beneficiary. Matthew Reynolds continued to be named as the registered owner. Evelyn Reynolds would, therefore, in ordinary circumstances, continue to occupy the subject property as the personal representative. Evelyn Reynolds died on 19th January 1992. She died intestate. As Matthew Reynolds was the registered owner, his estate remained unadministered at the date of Evelyn Reynolds’s death. Letters of Administration de bonis non, in respect of the unadministered part of the estate of Matthew Reynolds, Deceased, issued from the Probate Office to the plaintiff on 11th June, 2003. Letters of Administration, in respect of the estate of Evelyn Reynolds, Deceased, issued from the Probate Office to the defendant on 5th May, 2005.
The Pleadings
4. Proceedings were commenced by the plaintiff in the Circuit Court in 2003. The plaintiff, as personal representative of the estate of Matthew Reynolds, sought to primarily recover possession of the subject property from the defendant who was residing in the subject property. The plaintiff claimed that, as she was administrator of her father’s estate, she had the entitlement for the property to be sold. She also claimed that, as she was beneficially entitled to be registered as owner of the subject property, the occupation by the defendant on the property was an act of trespass. The plaintiff sought an injunction directing the defendant to leave the property.
5. The defendant claimed that he resided in the subject property since 1978 and looked after his mother after his father’s death. He stated that he continued to reside there after his mother died, and remained the sole occupant since 19th January, 1992. He claimed that all the other members of the family had left the family home and none lived there after 1992. The defendant submitted that over the intervening years he had expended a large sum of money, exceeding €75,000.00, in renovating and repairing the dwelling house. He claimed that all members of his family agreed and acquiesced to the carrying out of such works. The defendant argued that the plaintiff’s claim was barred pursuant to the provisions of the Statute of Limitations 1957 and the Succession Act 1965, as she took no steps to administer the estate of her father for more than twenty three years. He further pleaded that it would be unjust and inequitable to grant the reliefs sought by reason of prolonged and inordinate delay. The defendant submitted that the plaintiff was at all material times aware of the fact that he was in possession of the property and that he had carried out extensive repairs and renovations and that the plaintiff had raised no objection or expressed any interest in the property and therefore would be unjustly enriched if she was given possession of the property.
Relief Sought by the Plaintiff and the Circuit Court Order
6. The relief claimed by the plaintiff was as follows:-
(a) Damages for trespass.
(b) A mandatory injunction compelling the defendant to render forth vacant possession of the lands contained in Folio 21280 of the Register County Meath.
(c) A mandatory injunction directing the removal from the lands contained in Folio 21280 of the Register County Meath of all property belonging to the defendant his servants or agents.
(d) An injunction restraining the defendant from committing any further acts of trespass on the aforementioned lands.
7. On 3rd April, 2009, the Circuit Court made the following order:-
(a) A Declaration that Evelyn Reynolds was entitled to be registered owner of the lands comprised in Folio 21280 of the Register County Meath.
(b) A Declaration that James Reynolds had not acquired title to Folio 21280 of the Register County Meath by way of adverse possession.
(c) A Declaration that James Reynolds was entitled to financial compensation in the sum of €60,000.00 for work expended on the property from 19th January, 2002, to 18th May, 2004.
(d) That the defendant be restrained from carrying out any further work on the property.
(e) The sale of the property and that the defendant could remain in the property pending sale.
(f) No order as to costs.
The Law
8. Section 10 of the Succession Act, 1965 provides-
“(1) the real and personal estate of a deceased person shall on his death, notwithstanding any testamentary disposition, devolve on and become vested in his personal representatives.
(3) The personal representatives shall be the representatives of the deceased in regard to his real and personal estate and shall hold the estate as trustees for the persons by law entitled thereto.”
9. After the death of Matthew Reynolds, Evelyn Reynolds, as personal representative, held the property in trust for the person(s) entitled thereto. Those entitled were herself and her five children. By virtue of the Deed of Family Settlement, dated in 1980, the four children of age transferred their interest to their mother, while the plaintiff, when coming of age, accepted a sum of money in lieu of her interest. The defendant contends, therefore, that Evelyn Reynolds held the entire residue of the estate for herself, having barred the other next of kin six years after the full administration of the estate in 1980 or thereabouts. Presumably, it was with this submission in mind that the defendant extracted grant of letters of Administration of the estate of his mother Evelyn Reynolds on the 5th May 2005 after delivery of his defence on the 20th October 2004. However, in this context it is noteworthy that the defendant admits that Evelyn Reynolds died without having completed the administration of Matthew Reynolds’s estate.
10. Generally an assent or transfer is required to be executed by a personal representative to vest any interest or land in a beneficiary. Section 52 of the Succession Act, 1965 is the general empowering provision in this regard. Section 54, which is relevant in this case, states as follows:-
“54.—(1) An assent or transfer made by a personal representative in respect of registered land shall be in the form required under section 61 of the Registration of Title Act, 1964 , and shall be subject to the provisions of that Act.
(2) The Registration of Title Act, 1964 , is hereby amended by the substitution of the following subsection for subsection (3) of section 61:
‘(3) (a) An application for registration made by a person who claims to be by law entitled to the land of a deceased registered full owner, accompanied by an assent or transfer by the personal representative in the prescribed form, shall authorise the Registrar to register such person as full or limited owner of the land, as the case may be.
(b) On the determination of the estate or interest of an owner who is registered as limited owner of land pursuant to such an assent or transfer, the assent or transfer shall, on application being made in the prescribed manner, authorise the Registrar to register, as full or limited owner, as the case may be, the person in whose favour the assent or transfer was made, or the successor in title of that person, as may be appropriate.
(c) It shall not be the duty of the Registrar, nor shall he be entitled, to call for any information as to why any assent or transfer is or was made and he shall be bound to assume that the personal representative is or was acting in relation to the application, assent or transfer correctly and within his powers.’”
11. The plaintiff submits that these provisions are mandatory, and the personal representative is duty bound to comply in full. The assent or transfer accompanying the application for registration is then treated as conclusive by the Registrar of titles who is not required to examine the will nor any deed of family arrangement or releases signed by next of kin.
12. As the personal representative of Matthew Reynolds, Evelyn Reynolds would have had to have executed an assent in writing or a transfer on the prescribed Land Registry Form in order to vest the property in the person beneficially entitled. It was submitted that the person entitled could have been, by virtue of the arrangements surrounding the 1980 Deed, Evelyn Reynolds herself. No assent or transfer was ever signed and therefore the property was never transferred to the beneficial ownership of Evelyn Reynolds. The plaintiff therefore submits that the property did not form part of her estate when she died and the property remains part of the unadministered estate of Matthew Reynolds and is thus vested in the plaintiff in her capacity as administrator de bonis non.
Adverse Possession
13. Section 13 of the Statute of Limitations 1957 states as follows:-
“(2) The following provisions shall apply to an action by a person (other than a State authority) to recover land—
(a) Subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.”
Section 18(1) of the Statute of Limitations provides:-
“(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”
14. Generally, time does not begin to run against the owner of land until a right of action accrues to it. There must be both a dispossession of the owner, or discontinuance of possession by him, and adverse possession by some other person. It must be proved, in each case, that there is actual possession by the squatter coupled with the intention to exclude all others. The date from which the limitation period begins to run may be postponed as a result of there being a disability, fraud or mistake.
Deceased Persons’ Estates
15. The limitation period in respect of estates of deceased persons was 12 years, with 6 years for recovery of arrears of interest on a legacy. These periods have since been reduced to 6 years and 3 years respectively. However, the courts have held that these provisions apply only to claims against a personal representative, but not to claims by a personal representative to recover the assets of the deceased’s estate from a person holding adversely to the estate, where the normal 12 year period applies (Gleeson v. Feehan [1993] 2 I.R. 113. Gleeson v. Feehan [1997] 1 ILRM 522).
16. A next-of-kin entitled to a share in an intestate’s estate may bar the rights of other next-of-kin by adverse possession. (Wylie, Irish Land Law, 3rd Ed., 1997). Wylie continues at p. 1097 to state: “However, if one of the next-of-kin was in possession at the date of death of the owner, it would appear that his possession is adverse to the holder of the legal title, i.e. the President of the High Court, and not adverse to the other next-of-kin, because at that stage they have no equitable or other interest vested in them. No interest vests in them until, at the earliest, a grant of representation is made in favour of administrators vesting the legal title in them and they complete administration of the estate, so that the net estate is available for distribution to the next-of-kin as intestate successors. This was the view of the Supreme Court in Gleeson v. Feehan [1997] 1 ILRM 522”.
17. Before his death, Matthew Reynolds was the registered owner of the property. The plaintiff submits that at no time before his death can the defendant claim to have been in adverse possession as the owner was occupying the premises. The period from 22nd March, 1980 to 19th January, 1992 cannot, according to the plaintiff, be recognised as adverse possession as his mother was in actual occupation as personal representative, and therefore the defendant did not have exclusive possession. He also signed the Deed of Settlement which recognised his mother’s entitlement to the total estate. Evelyn Reynolds died on the 19th January, 1992. It is the contention of the plaintiff that 12 years did not pass even if the defendant was in adverse possession, as these proceedings were commenced on 11th November, 2003. The plaintiff submitted that under Order 11 Rule 3 of the Circuit Court rules, the proceedings were commenced when they were deemed to be issued when the equity Civil Bill was presented to the Office sealed and marked with the appropriate record number by the appropriate officer on the 11th November, 2003.
Assents
18. A personal representative is a person who is responsible for the administration of a deceased person’s estate. Where the deceased died intestate, the court may authorise a person to administer the estate (an administrator) by granting it letters of administration. After the initial grant of representation, a further grant, a grant de bonis non, may be required in respect of the same estate, for example where an administrator dies without having administered the entire estate.
19. Generally an assent or transfer is required to be executed by a personal representative to vest any interest or land in a beneficiary. In Re King’s Will Trusts [1964] Ch 542, 547, Pennycuick J. defined an assent as ‘the instrument or act whereby a personal representative effectuates a testamentary disposition by transferring the subject-matter of the disposition to the person entitled to it.’ The form of the assent depends on whether the land is registered or unregistered. In the case of unregistered land, section 53 of the Succession Act, 1965 requires that an assent should be in writing and signed by the personal representatives. Section 54 of the 1965 Act provides that an assent or transfer by a personal representative in respect of registered land must be in the form required under section 61 of the Registration of Title Act 1964. Section 52 of the 1965 Act provides that ‘…the personal representatives may at any time after the death of the deceased execute an assent vesting any such land in the person entitled thereto…’ A personal representative, if beneficially entitled, may make an assent in his own favour. A case which deals with this issue is the case of Mohan v. Roche [1991] 1 IR 560. In this case Michael Roche died intestate in 1967. Letters of Administration were granted to his widow Mary Bridget Roche in 1968. The nine children granted, released and conveyed their interest in a dwelling-house, which was part of the estate of Michael Roche, to their mother, Mary Bridget Roche. Mary Bridget Roche died in 1989 and appointed her son Thomas Roche to be her executor. Thomas Roche extracted a Grant of Probate of the will of Mary Bridget Roche and entered into a contract to sell the house. The purchaser of the house refused to complete the sale, arguing that the title was defective as no assent had ever been executed by Mary Bridget Roche. The purchaser stated that he would only complete the sale if such defects were cured by a grant de bonis non to the estate of Michael Roche and by the due execution of an assent and its registration in the Registry of Deeds. Keane J refused the purchaser a declaration that the vendor had not shown good marketable title to the premises in accordance with the terms of the contract. Keane J held that where a property had devolved and was vested in the personal representative and was to be distributed to him or he became beneficially entitled to it, then an assent was not required.
20. The Law Reform Commission in its report on Land Law and Conveyancing Law, 1998, has stated that Mohan v. Roche only applies in limited circumstances. In the case of intestacy, it is limited to where the administrator is beneficially entitled to the entire of the estate and all the liabilities have been discharged or have become statute barred. However, the Commission does state that in the great majority of cases it would be much more satisfactory if assents were to be completed. It would be good conveyancing practice to execute an assent and this is suggested in the judgment of Keane J who acknowledged that a personal representative executing an assent in his own favour signals that he no longer acts as personal representative charged with completion of administration of the estate and makes it clear to prospective purchasers and others contemplating entering into dealings with him that he has become the full beneficial owner.
21. Coughlan states that it is unlikely that Mohan v. Roche can be read as having any application to registered land (Coughlin, Property Law, 2nd Ed p 429.). Section 61(3) of the Registration of Title Act 1964, as inserted by s. 54(2) of the 1965 Act, suggests that an assent or transfer by the personal representative is a prerequisite to registration of the person entitled to the deceased’s land as owner, regardless of whether that person is also a personal representative.
Schedule of Works
22. The defendant submits that he made the following repairing and refurbishment works to the subject property:
• In the late 1970’s a 600 sq. ft. extension comprising kitchen, bathroom and two bedrooms were added to the dwelling house. At the same time the existing dwelling house was refurbished and a septic tank and water supply installed. The estimated cost of materials for this was £15,000.00.
• In the 1990’s the existing extension to the dwelling house was refurbished and PVC windows and central heating were installed. A front porch was added to the dwelling house. New floors were installed throughout the house which was insulated. The outside of the house was replastered. The works were completed in 2003 and the estimated cost of materials was €25,000.00.
• In 2004 external works were commenced comprising the installation of new paths, yard and fencing. Brick and stone walls were added around the house together with timber fencing and gates. The estimated cost of materials was €20,000.00.
All the above works were carried out by the defendant and no provision has been made for his labour costs.
23. In relation to the works carried out in the 1970’s, the plaintiff claims that this claim is barred by virtue of s. 9 of the Civil Liability Act, 1961 which reads as follows:
“9. (1) In this section “relevant period” means the period of limitation prescribed by the Statute of Limitations or any limitation enactment.
(2) No proceedings shall be maintainable in respect of any cause of action whatsoever which has survived against the estate of a deceased person unless either-
(a) proceedings against him in respect of that cause of action were commenced within the relevant period and were pending at the date of his death, and
(b) proceedings are commenced in respect of that cause of action within the relevant period or within the period of two years after his death, whichever period first expires.”
As the proceedings were not pending at the date of Matthew Reynolds death, the plaintiff contends that under s. 9(2)(b) the defendant had two years from 22nd March,1980, in which to commence proceedings against the estate and did not do so. The plaintiff also submits that the defendant does not plead that this work was done under any agreement with the Deceased, or that the Deceased made any promise that the defendant would in some way benefit on his death. By entering into the Deed of Settlement, the plaintiff argues that the defendant is estopped from maintaining this part of his claim.
Estoppel
24. When a person makes a representation, whether by words or by conduct, of an existing fact which causes another party to incur detriment in reliance on this representation, the person making the representation will not be permitted to act subsequently in a manner inconsistent with that representation. As Edward Nugee QC (sitting as a High Court judge) stated in Re Basham [1986] 1 W.L.R. 1498 ‘Where one person, A, has acted to his detriment on the faith of a belief which was known to and encouraged by another person, B, that he either has or is going to be given a right in or over B’s property, B cannot insist on his strict legal rights if to do so would be inconsistent with A’s belief.’ Therefore there must be assurance, reliance and detriment and it is important to note that the fundamental principle that equity ‘is concerned to prevent unconscionable conduct permeates all elements of the doctrine’ Gillet v. Holt [2001] Ch 210, 225 per Robert Walker L.J.
25. In relation to the works carried out in the 1990’s, the plaintiff claims that there was no encouragement of this expenditure on the part of Matthew Reynolds other next of kin. It is for the defendant to prove that he relied on their silence or acquiescence. If he did not place reliance, but simply did these works for his own benefit as occupier, it was submitted that he cannot succeed in his claim for propriety estoppel or unjust enrichment. The plaintiff also submits that the defendant was benefiting from these works and was not paying any rent.
26. In relation to the works carried out in 2004, the plaintiff submits that all these works have been carried out after these proceedings were issued and served, and at a time when the defendant knew that his father’s estate was seeking to restrain his trespass. Therefore, they were technical trespasses and unlawful acts. The plaintiff contends that the works after 2004 were clearly not encouraged and acquiescence cannot be said to arise as proceedings were in being, of which the defendant was aware. The plaintiff also argues that as the defendant has no receipts or invoices in respect of the materials purchased the maxim he who claims equity must come with clean hands should apply to exclude this claim.
Trespass
27. The plaintiff claims damages for trespass, and she submits that the estate is entitled to a fair sum representing mesne rates for a period of six years prior to the institution of proceedings up to the present time.
Delay
28. During the course of the hearing of the appeal, counsel for the defendant/appellant argued that even if the plaintiff is held to have the paper title and in law is entitled to possession of the property, the court should not grant an injunction for the recovery on the basis that an injunction is an equitable relief and is subject to the overall restraint of the equitable maxim “delay defeats equity”. In “Equity and the Law of Trusts in Ireland” Hillary Delaney (2nd Ed.) p. 26, the relationship between limitation periods provided for in the Statute of Limitations and this maxim is stated as follows:-
“The only exception to the principle that equitable considerations will have no application to cases to which the Statute of Limitations 1957 applies, is the reasoning employed by Henchy J. in ÓDomhnaill v. Merrick [1984] I.R. 151, based on the constitutional right to fair procedures to the effect that in certain circumstances ‘inordinate and inexcusable delay’ will bar a claim brought within the relevant limitation period where this will place an unfair burden on the person sued. The principle in ÓDomhnaill was applied by the Supreme Court in Toale v. Dignan (No.2) [1991] ILRM 140, where Finlay C.J. said that the courts have an inherent jurisdiction to dismiss a claim in the interests of justice where the length of time which is left between the events out of which it arises and the time when it comes for hearing is in all the circumstances so great that it would be unjust to call upon a particular defendant to defend himself. However, as Keane (Equity and the Law of Trusts in the Republic of Ireland (1988)) at p. 35-36) has pointed out, these principles are likely to only apply in a small number of cases, namely those relating to personal injuries claims by minors, in which the limitation period may be particularly long, and the recollection of witnesses of considerable importance.”
He who seeks Equity must do Equity
29. Delaney in the 2nd Ed., p. 17, sets out the principles applying to the maxim “He who seeks Equity must do Equity” as follows:-
“Equity will only grant relief on terms which ensure that a defendant is treated fairly and to obtain equitable relief, a plaintiff must be prepared to act in an honourable manner. This maxim has many different applications and reflects the fact that equitable remedies are discretionary in nature. It is one of the few maxims that can be interpreted fairly literally as Magher, Gummow and Lehane (Equity Doctrines and Remedies (3rd Ed. 1992) p. 77) point out ‘there are many illustrations of and almost no exceptions to the maxim’ it is, in a sense, compliments the maxim that ‘he who comes to equity must come with clean hands’ and while the latter principle focuses on the past conduct of the parties seeking the intervention of the court, the maxim that ‘he would seeks equity must do equity’ is concerned with his likely future conduct.
The effect of the maxim is noticeable in the approach of equity towards the granting of remedies and is a feature of equitable jurisdiction which distinguishes it from the common law. An illustration of this is the manner in which equity approaches a claim for recission of a contract. Recission will be granted to a plaintiff on such terms which the court considers just and relief of an unconditional nature may not achieve this aim so in Cheese v. Thomas an elderly plaintiff who had given the defendant, his great nephew, approximately half the purchase price of a house on the understanding he would live there until he died, sought to have the transaction set aside on grounds of undue influence. Nicholls V.C. ordered that the property should be sold and that both parties should bear the loss on the sale in the same proportions that they had contributed to the purchase price. He pointed out that the court was concerned to achieve practical justice for both parties and not for the plaintiff alone and stated that the ‘plaintiff is seeking the assistance of the court of equity and who seeks equity must do equity’.”
The Evidence
30. The plaintiff gave evidence in relation to her entitlement as personal representative DBN to the deceased, Matthew Reynolds, and of the folio concerned from which it was clear in an earlier version thereof that the site concerned was provided with a house thereon subject to the payment of a purchase annuity for the house. The defendant gave evidence of the expenditure of money in providing an extension to the house, which was a basic County Council house without significant services, prior to the death of his father, the said Matthew Reynolds, deceased, on foot of a promise he alleged his father made that he could “have” the house after his life on foot of the work carried out, and subject, of course, to the right of his mother, the said Evelyn Reynolds, to reside therein. He stated that after the death of his father he continued to execute works and had an expert prepare a detailed estimate of the work carried out since the death of his father, the said Matthew Reynolds. He stated that the children of the said Matthew Reynolds executed a release of their claim on the intestacy of his father to his mother, the said Evelyn Reynolds, and admitted that he was a party to this Deed of Release and that the plaintiff herself, not being of full age, was catered for by the payment of a sum (it seems to be less than £1,000) into an account held by her on behalf of Evelyn Reynolds. He agreed that no formal assent was executed by Evelyn Reynolds in respect of the lands in the said folio. He stated that his mother and the other siblings were aware of his continuing to execute work on the dwelling house after the death of his father, and he produced documentation and correspondence including an undertaking by his mother’s solicitor which he claimed were for the purpose providing security for credit afforded to him to complete certain works on the house. He claimed that his possession of the house was adverse to the other members of the family, including his mother, by reason of the promise of his father and his agreement with his father to take care of his mother. He agreed in cross examination that certain steps were taken to investigate and apply for planning permission for a second dwelling house in the site of the said folio for the benefit of the plaintiff, and that when the plaintiff sought to have some material deposited on the site that he resisted this on the basis that she had no entitlement thereto, and that shortly after this spat the proceedings were initiated by the plaintiff. He stated that he was unemployed and was of an age where he might not obtain employment and it would be a hardship on him to vacate the dwelling house on the site. Equally, he conceded in cross examination that the plaintiff herself had experienced some hardship in her life and that his other siblings were not well off. He disputed the suggestion made in cross examination that the other siblings could come and go to the home as they pleased, and asserted that such visits were only occasions social visits and on his invitation. The plaintiff gave evidence in relation to her continued interaction with the defendant in regard to the possibility of building a second house on the site and taking steps in the planning process to effect such an objective. She said that none of the family were excluded from the family home, either by her mother, the said Evelyn Reynolds, or by the defendant and that his possession was not exclusive of any member of the children of Matthew Reynolds and Evelyn Reynolds.
Conclusions
(I) Adverse Possession of the Defendant
A. The defendant clearly was not in adverse possession in relation to his late father, Matthew Reynolds, as he did not reside on the lands to the exclusion of his father’s family, i.e. his later mother and siblings. Also, his evidence was that his father requested him to carry out the extension for him and there was no suggestion that this work was an exercise of the defendant in the exclusion of the father.
B. Neither was the defendant in adverse possession as against the mother insofar as he was not in possession to the exclusion of other persons, especially the mother and his siblings, although as time went on the siblings were coming and going on a less frequent basis. The dealings admitted by the defendant to have taken place between himself and the mother, such as the Deed of Release of 1980 and the action taken by the mother to provide security for a loan to the defendant from a financial institution to enable him to carry out works, is overwhelming evidence to indicate that there was no exclusion by the defendant of the mother either in her own right or in her capacity as personal representative of his late father, Matthew Reynolds.
C. Neither did the defendant exclude the plaintiff or other members of the family from the premises insofar as he participated to a certain extent in the endeavour of the plaintiff to provide housing for herself on the site of the lands, and it was only late in the day when a spat arose over the placing of material on the lands on behalf of the plaintiff that an adverse claim commenced to be asserted.
(II) Statute of Limitations
31. As the defendant was not in adverse possession of the lands and did not have exclusive occupation thereof as against either his father or his personal representative and did not have the requisite period of time from the death of his mother to the commencement of proceedings by the plaintiff to establish title by adverse possession as against the estate of the mother, I find that the plaintiff is not statute barred from claiming possession of the lands and is, therefore, entitled to an injunction in this case subject to such further equitable considerations as arise.
(III) Delay
32. I accept the statement of the law in Delaney quoted above in relation to the general non-applicability of the defence of delay to cases governed by the Statute of Limitations. The principles referred to are all the more applicable in a case such as this where registered land is involved, insofar as the jurisprudence arising from ÓDomhnaill v. Merrick and other following cases is not relevant to the situation of a person seeking to establish a right to the lands which would constitute a burden without the necessity for registration under s. 71(1)(p) of the Registration of Title Act 1964, which deals with rights of persons acquiring or in the course of being acquired under the Statute of Limitation by way of adverse possession. It seems to me that the disqualification from asserting a right as envisaged by ÓDomhnaill v. Merrick, such as the inability to establish a defence, is anathema to the positive acquisition of a right envisaged under s. 72(1)(p) or for that matter, establishing a right as a person in actual occupation as envisaged by s. 72(1)(j) of the 1964 Act. While I note that consideration of a case of delay under ÓDomhnaill and related cases involved the balancing of conduct including delay on the part of a person in the defendant’s position, I consider that the delay caused by the defendant in this case by not accepting service of proceedings and subsequently tardiness in replying to a notice for particulars necessitating, in both cases, remedial applications to the Circuit Court, while being relevant in relation to consideration of various aspects of the case later on, would not tip the balance against the defendant even if he were to get some advantage or defence on the basis of ÓDomhnaill principles.
(IV) Absence of Assent
33. As transactions in relation to registered land are governed in detail by Statute and the rules made thereunder, the courts should be reluctant to interfere with such an extensive scheme which has had and continues to have the effect of greatly simplifying the complexities of conveyancing. Hence, I am very reluctant to accept that the solution proposed in the judgment of Keane J. in Mohan v. Roche in the case of the absence of an assent of non-registered land, should be followed as it would fly in the face of the principle of the conclusiveness of the register and the express provisions of s. 72 of the 1964 Act specifically listing burdens which may affect registered land whether those burdens are or not registered. To concede an extension of the Mohan v. Roche principle to registered land would be for the courts to create an additional burden affecting land of a type outside s. 72 and would constitute an unwarranted usurpation of the powers of the Oireachtas.
(V) Compensation for Work
34. The defendant is clearly statute barred in respect of any claim for works done on behalf of his father, Matthew Reynolds deceased. While his counsel did attempt to argue that the performance of works by the defendant for his late father should give rise to an inference that there was an agreement expressed or implied by the father to grant an interest in the lands corresponding to the proportionate value of the works to the defendant, this argument has no credence in the light of the dealings which the defendant had with his mother in relation to the Deed of Release and undertaking of mother through her solicitor to hold title deeds as security for a loan (even though the formal title to the lands in question was not perfected by reason of the absence of an assent). The plaintiff did not really contest the entitlement of the defendant to the sum of €60,000 awarded by the learned Circuit Court Judge in respect of works carried out during the life of his mother and after the death of his father up to the 18th May, 2004. Similarly the question arises whether the carrying out of such extensive works which, combined with the works done during the life of his father, fundamentally altered the footprint and image of the house would carry with it by reason of the court holding that there was an implied agreement that an interest would pass proportionality to the defendant in the lands, I can say that there was no course of dealing evidenced between the mother and son such as would indicate such an agreement express or implied. The case is, therefore, one where the defendant should be compensated for the work done after the death of his father on the basis that to grant an injunction without further compensation would be to unjustly enrich the estate of the deceased and the other beneficiaries.
(VI) Entitlement of the Defendant to remain in Possession
35. While counsel on behalf of the plaintiff prevaricated on the matter during the course of the appeal, it is clear that it is contemplated that the plaintiff, as personal representative of the deceased registered owner, will sell the property and administer the estate as was stated on her behalf by her solicitors in the preliminary letter sent to the defendant prior to the commencement of the proceedings herein. Indeed, on the basis of Gleeson v. Fehan above, to do otherwise than sell the lands and administer the estate for distribution to the next of kin or their personal representatives would be to create from these proceedings an incorrect interpretation of the commendation of the Statute of Limitations and the Succession Act as an engine of fraud. Therefore, I consider that the order of the Circuit Court in para. E that the sale of the property be subject to the defendant remaining in the property pending sale is inappropriate as such a provision would not only jeopardise the sale of the property, but could well lead to further disputes and litigation in a family already damaged by such events.
(VII) Treatment in Equity
36. As the plaintiff could, having regard to this judgment, have brought proceedings by way of ejectment on the title which might not be amenable to the flexibility and fine tuning of the same relief being obtained by way of an injunction, and the defendant has eloquently prayed for equitable relief to temper the severity of any order for possession by way of injunction, it is appropriate in the interests of justice and this family that the court would temper the injunction with the following terms:-
A. That the defendant is not entitled to payment of the sum of €60,000 compensation until he administers the estate of his mother and pays the next of kin their appropriate shares.
B. That the plaintiff proceeds forthwith to administer the estate of Matthew Reynolds, deceased.
Summary
37. The court discharges the order of the 3rd day of April, 2009, and substitutes therefore the following order:-
A. A declaration that the plaintiff, as administrator of the estate of Matthew Reynolds, is entitled to possession of the lands comprised in folio 21280 of the Register of County Meath.
B. A declaration that James Reynolds, the defendant/appellant, has not acquired title to Folio 21280 of the Register of County Meath by way of adverse possession.
C. A declaration that the defendant/appellant is entitled to financial compensation in the sum of €60,000 for work expended on the property from the 19th January, 2002, to the 18th May, 2004, such compensation to be paid on condition of compliance with the conditions for payment of same as described in this judgment.
D. That the defendant/appellant be restrained from carrying out any further works on the property.
E. A mandatory injunction directing the defendant/appellant to forthwith vacate the lands contained in Folio 21280 of the Register of County Meath and give up possession thereof, including all keys, utility bills and all matters for the effective handover of the property to the plaintiff.
F. That the plaintiff/respondent proceed with the proper administration of the estate of Matthew Reynolds, deceased, upon receipt of possession of the property and lands contained in Folio 21280 aforesaid in accordance with the preliminary letter herein.
38. The court invites the parties to make submissions in the light of the foregoing judgment and amended order in relation to the costs of the parties and how the costs of these proceedings should be dealt with (if at all) in the administration of the relevant estates.
Hearing of the 22nd February, 2011
39. Counsel for the parties addressed the court in relation to the details of the order proposed to be made herein and the costs issue as invited on the 22nd February, 2011. Counsel for the defendant/appellant sought a stay on the order for possession to enable the defendant to take steps to find alternative accommodation, and I find that a stay on possession to the 1st September, 2011, is appropriate. Such reasonable course was not resisted by counsel for the defendant/appellant.
40. Counsel for the defendant/appellant argued that the defendant would be penalised disproportionately in relation to a family dwelling where he had resided for most of his life and that have to carry all the costs of complex litigation would be disproportionate to the compensation of €60,000 which he expected to receive as a result of the judgment. The court indicated that the failure of the defendant in the appeal should be marked by some penalty but that the court was prepared to measure a sum in respect of costs to be paid by the defendant representing approximately half of the costs. These were estimated to be €10,000 by counsel for the defendant and €20,000 by counsel for the plaintiff exclusive of VAT, and that in any event that there should be a stay on the payment of €6,000 costs by the defendant to the plaintiff until such time as the plaintiff pays to the defendant the said sum of compensation subject to such set off. It was agreed that the preliminary letter of the 7th July, 2003, from the plaintiff’s solicitors to the defendant would be appended to the order on the basis that the proceedings were necessary to recover the lands and selling them in accordance with the demand of the preliminary letter of the 7th July, 2003. I certify for senior counsel in both courts and as a guide for taxation that the costs would bear a reasonable relationship to the level of costs indicated by the sum measured in respect of half the costs for which the defendant is liable herein. Accordingly, for the purpose of clarity, the summary indicating the form of order set out in para. 15 of the judgment herein should be replaced by the following:-
A. A declaration that the plaintiff, as administrator of the estate of Matthew Reynolds, is entitled to possession of the lands comprised in folio 21280 of the Register of County Meath.
B. A declaration that James Reynolds, the defendant/appellant, has not acquired title to Folio 21280 of the Register of County Meath by way of adverse possession.
C. A declaration that the defendant/appellant is entitled to financial compensation in the sum of €60,000 for work expended on the property from the 19th January, 2002, to the 18th May, 2004, such compensation to be paid on condition of compliance with the conditions for payment of same as described in this judgment.
D. That the defendant/appellant be restrained from carrying out any further works on the property.
E. A mandatory injunction directing the defendant/appellant to vacate the lands contained in Folio 21280 of the Register of Freeholders County Meath on the 1st day of September, 2011, and give up possession thereof, including all keys, utility bills and all matters for the effective handover of the property to the plaintiff and that the defendant, his servants or agents allow access for the plaintiff’s engineer, architects and for local authority personnel to inspect the premises and do such minimal excavations as are necessary to examine the septic tanks and services of the property for the purpose of presenting a retention application to the planning authority and allow prospective purchasers to visit and inspect the property.
F. That the plaintiff/respondent proceed with the appropriate administration of the estate of Matthew Reynolds, deceased, upon receipt of possession of property and lands contained in Folio 21280 of the Register of Freeholders aforesaid in accordance with the preliminary letter herein dated the 7th day of September.
G. Liberty to apply to the Circuit Court in relation to the enforcement of this order.
H. The plaintiff is entitled to recover her costs out of the estate for the Circuit Court case on the lowest equity scale with a certificate for senior counsel, his fees being tied to the scale of junior counsel.
The plaintiff is entitled to recover half her costs of the appeal against the defendant measured on the lowest equity scale with a certificate for senior counsel, these costs being measured at €6,000.00 for the appeal would be recoverable from the estate.
The plaintiff shall be entitled to set off the sum of €6,000.00 against the defendant’s compensation of €60,000.00 ordered herein and the payment of such sum of €6,000.00 shall be stayed until such time as the payment of such compensation subject to such set off has been paid by the plaintiff.
Appendix Hereinbefore Referred To
“We act for your sister Catherine Dolan the administrator of your late father’s estate, Mr. Matthew Reynolds. We enclose herewith a copy of the grant of administration in the said estate.
Our client proposes selling your late fathers property at Posseckstown comprised in folio MH21280 and dividing the proceeds equally among the beneficiaries i.e. your good self and your siblings.
In the circumstances, we would ask you to provide us immediately with a set of keys to the dwelling house on the said property so that we can arrange for viewings at times convenient to your good self. We also require you to vacate the premises within 28 days of the date hereof, failing which we will be compelled to take legal proceedings against you. We strongly recommend that you pass this letter on to your solicitor.”
O’Hagan v Grogan
[2012] IESC 8
Judgment of Macken J. delivered on the 16th February, 2012
This is an application arising on a consultative Case Stated to this Court from the Circuit Court (Judge Linnane) dated the 16th January, 2007, pursuant to the provisions of s.16 of the Courts of Justice Act, 1947. The questions posed in the Case Stated are the following:
(a) Is the plaintiff a “State authority” for the purposes of the Statute of Limitations, 1957?
(b) Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this case prescribed by s.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof?
(c) Is the answer to (b) affected by s.65 of the Succession Act, 1965?
The Case Stated has arisen as a result of the pleadings, including the defence and counterclaim of the defendant, in proceedings commenced by the plaintiff, seeking possession of a house which the defendant occupies, and has occupied since 1982, and an injunction restraining trespass. The defendant claims that, on the basis of what are frequently called squatters’ rights, he acquired title to the premises “adverse to the President of the High Court” more than 12 years prior to the time when Letters of Administration were granted to the plaintiff in 2000, and therefore the plaintiff has no legal right to have either possession of the house, or an injunction to restrain the alleged trespass.
Background Facts as Agreed or Proven
According to the Case Stated, on facts agreed or proven, the late Mrs. Alice Dolan died intestate on the October 22, 1981 in possession and in occupation of a house at 6 Enniskerry Road in Dublin. Well before she died, and on her death, Mrs. Dolan was entitled to the beneficial ownership of that property which had been agreed by Dublin Corporation (as it then was) to be conveyed directly to her by the then vendors of the property, in exchange or in part exchange for her previous home in Dublin, which the Corporation required for road widening. The deed of assignment (dated in December, 1978) to Mrs. Dolan had been executed both by the then vendor and by Dublin Corporation (who were paying the vendor for the property) and the deed had also been stamped. At the time she died, Mrs. Dolan had not executed the deed of assignment, but she had been allowed into occupation of the property well prior to that time (in 1978). No issue arises as to Mrs. Dolan’s entitlement to the property. In the course of his employment in the auctioneering business, the plaintiff learned of Mrs. Dolan’s death and of the apparent absence of any next of kin. He, it seems, broke into her home (“the premises”) through the back door, in February, 1982, and has remained in possession of the premises, along with a Mary Grogan, since that date.
A citation to next of kin, if any, was issued on 21st January, 1998, and was deemed as a renunciation of any interest in the estate. Letters of Administration were extracted in July, 2000 and granted to Laurence A. Farrell, as then Chief State Solicitor, the then Attorney General having consented to his doing so. He thereupon became the personal representative of the estate of Mrs. Dolan. Mr. O’Hagan (“the plaintiff”) is the successor to Mr. Farrell. Although his entitlement to bring proceedings, both as Chief State Solicitor and as personal representative was raised in the defence, as filed, which challenged devolution to the plaintiff from Mr. Farrell in either such capacity, these pleas are not mentioned in the Case Stated or in the submissions on behalf of the defendant. For the purposes of this judgment, I take the view that no issue arises on that devolution.
By a Circuit Court Equity Civil Bill issued on the 14th May, 2002 and served on the defendant on the 24th May, 2002, the plaintiff sought, inter alia: injunctions directing the defendant to vacate the premises, delivery up of possession of them to the plaintiff, and an order restraining the defendant from all further trespass on the premises, as well as damages for trespass and a declaration that the defendant has no equitable or legal title to the premises. The defendant by his defence, denied trespass and all entitlement in the plaintiff to the reliefs sought. He then followed these denials with the following positive pleas: (a) that as of the 21 July 2000, the date when Letters of Administration issued, the real and personal estate of the late Alice Dolan on the date of her death on the 22nd October, 1981 had vested in the President of the High Court until administration of her estate was granted, pursuant to the provisions of s.13 of the Succession Act, 1965; (b) that in or about the month of February, 1982 the defendant, together with a Mary Grogan, went into occupation and possession of the premises, and remained there for upwards of 12 years, “adversely to the President of the High Court”; (c) that as of the 21st July, 2000, all right, title and interest in the estate of Alice Dolan, of the then personal representative, and of all other persons claiming any interest in her estate, including the State as ultimate successor pursuant to the provisions of s.73 of the Succession Act, 1965, were already statute barred under the provisions of the Statute of Limitations 1957 and the Succession Act 1995; (d) that no estate or interest in the premises vested in the personal representative, Laurence A. Farrell, on the extraction of the grant of Letters of Administration; (e) that neither Laurence A. Farrell, as former Chief State Solicitor, nor the plaintiff, either in the same capacity or as personal representative of the late Alice Dolan, is, or were, at any relevant time, a “State authority” within the meaning of the Statute of Limitations, 1957, contrary to the plaintiff’s plea that he was; and (f) that the title of the said Laurence A. Farrell, and/or of the State, to the premises had been extinguished by virtue of the provisions of s.24 of the said Statute of 1957.
The defendant did not, by his defence, although it is entitled “Defence and Counterclaim”, in fact, counterclaim either as against the President of the High Court, any State authority, or the State, which latter was otherwise entitled to the premises, as ultimate intestate successor to the estate of Alice Dolan, and no relief was sought against any of them. Neither the President of the High Court, nor the State, nor any State authority was joined as a party to any plea by the defendant in his defence, or the adverse possession plea. I will return to this in the course of my judgment.
Issues Presented
It will be seen from the foregoing exposé of the basic facts and of the pleadings, that the essential issues to be resolved in the Circuit Court proceedings are whether the plaintiff, either as a State authority, or as personal representative, is entitled as against the defendant to possession of the premises, and whether the defendant has established that he is the owner, by adverse possession of the premises, as against the true owner. In turn, the outcome of these depends on (a) whether the plaintiff is a State authority, as he claims; (b) whether, if not a State authority, he is entitled as personal representative pursuant to the Grant of Letters of Administration to have possession of the premises as against the defendant, and (c) what limitation periods operate in relation to these and allied issued arising, in particular in the case of a person dying intestate with no next of kin. The significance of determining the relevant limitation period is as follows. The defendant began his occupation of the premises in February 1982. Letters of Administration issued in July 2000. The defendant was, therefore, in possession of the premises for over 17 years before that date. If the defendant is correct in his contention that the applicable limitation period is 12 years from the date of death of the late Mrs. Dolan, and he had, in law, adversely possessed the premises against the appropriate party(ies) for the appropriate period, this would have the effect of barring any title to it vesting in the personal representative in July, 2000, following upon the purported grant of Letters of Administration to the plaintiff’s predecessor at that date. If the plaintiff is, on the contrary, a “State authority” within s.2(1) of the Statute of Limitations for and on behalf of the State – at least according to one of his pleas in the Equity Civil Bill – and as argued in this appeal, or is entitled to possession on any alternative legal basis pleaded, then the defendant’s claim cannot succeed, since possession does not become adverse to the State or any State authority until the expiration of 30 years from the date on which the right of action accrued, according to s. 13(1)(a) of the Statute of Limitations, 1957. If a 30 year limitation period properly applies, this effectively bars the defendant’s claim to have adversely possessed the property on or before July, 2000 In the above context, and having heard legal argument, the learned Circuit Court judge posed the three questions set out at the commencement of this judgment, for the opinion of this Court. Helpful written submissions were filed by both parties and were supplemented by oral argument on the part of counsel for each party.
Since the answers to the questions raised, and to important allied issues, concern the correct interpretation and application of several legislative provisions, it is appropriate to commence by setting out the relevant legislation, which is fairly lengthy, interrelated and also quite complex.
Ministers and Secretaries Act, 1924
S.6(1) of this Act is relied on by the plaintiff. It states:
“There shall be vested in the Attorney-General … the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney-General for Ireland, the Solicitor-General for Ireland, … and any or all of them respectively, and the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the public services specified in the Ninth Part of the Schedule to this Act …” (emphasis added)
The “Ninth Part of the Schedule to this Act” includes, inter alia, the “Chief State Solicitor’s department and all local State Solicitors.”
Statute of Limitations 1957
There are several provisions of this Act (“the Statute of Limitations”) which play a pivotal role in a proper consideration of the issues arising on the Case Stated. They are the following:
s.2(1) “State authority” means any authority, being:
(a) a Minister of State, or
(b) the Commissioners of Public Works in Ireland, or
(c) the Irish Land Commission, or
(d) the Revenue Commissioners, or
(e) the Attorney General.”
s.3(1) “Save as in this Act otherwise expressly provided and without prejudice to section 7 of this Act, this Act shall apply to proceedings by or against a State authority in like manner as if that State authority were a private individual.”
S.7 “This Act shall not apply to—
(a) any action for which a period of limitation is fixed by any other limitation enactment, or
(b) any action to which a State authority is a party and for which, if that State authority were a private individual, a period of limitation would be fixed by any other limitation enactment.”
s.13(1)(a) “Subject to paragraphs (b) and (c) of this subsection no action shall be brought by a State authority to recover any land after the expiration of thirty years from the date on which the right of action accrued to a State authority or, if it first accrued to some person through whom a State authority claims, to that person.”
s.13(2) “The following provision shall apply to an action by a person (other than a State authority) to recover land –
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority whichever period first expires.”
s.14(2) “Where –
(a) any person brings an action to recover any land of a deceased person, whether under a will or on intestacy, and
(b) the deceased person –
(i) was on the date of his death in possession of the land or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged, and,
(ii) was the last person entitled to the land to be in possession thereof
the right of action shall be deemed to have accrued on the date of his death.”
s.18(1) “No right of action to recover land shall be deemed to accrue unless the land is in possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.”
s.23 “For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the date of the death of the deceased and the grant of letters of administration.”
s.24 “Subject to section 25 of this Act and to section 52 of the Act of 1891, at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished.” (emphasis added)
The Administration of Estates Act 1959
Section 13 of this Act (“the Act of 1959”) is also invoked, and is in the following terms:
s.13 “Where a person dies intestate, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary.”
The Succession Act 1965
Again, several provisions of the Act (“the Act of 1965”) are also important, and include:
s.13(1) “Where a person dies intestate, or dies testate but leaving no executor surviving him, his real and personal estate, until administration is granted in respect thereof, shall vest in the President of the High Court who, for this purpose, shall be a corporation sole.”
s.65(1) “Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate.”
s.65(2) “Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.”
s.65(3) “Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant.”
s.73(1) “In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor.”
(emphasis added)
Intestates Estates Act 1884 (U.K.)
Some English legislation, including of the late 19th century, were also invoked. The provisions of this Act, and of the later Administration of Estates Act 1925, were both cited in argument by the parties. The relevant provisions are the following:
s.2 “Where the administration of the personal estate of any deceased person is granted to a nominee of Her Majesty (whether the Treasury Solicitor, or a person nominated by the Treasury Solicitor, or any other person), any action or other proceeding by or against such nominee for the recovery of the personal estate of such deceased person, or any share thereof, shall be of the same character, and be brought, instituted and carried on in the same manner, and be subject to the same rules of law and equity (including the rules of limitation under the Statutes of Limitation or otherwise), in all respects as if the administration had been granted to such nominee as one of the next-of-kin of such deceased person.”
s.3 “After the passing of this Act, information or other proceeding on the part of Her Majesty shall not be filed or instituted, and a petition of rights shall not be presented, in respect of the personal estate of any deceased person or any part or share thereof, or any claim thereon, except within the same time and subject to the same rules of law and equity in and subject to which an action for the like purpose might be brought by or against a subject.” (emphasis added)
It will be seen that s.2 covers the position as to personal estate, where administration is granted to a nominee of the Crown, in which event proceedings by or against the nominee are subject to the same rules (including expressly those concerning limitation periods under the “Statute of Limitations or otherwise”). Section 3 concerns proceedings taken on the part of the Crown.
Administration of Estates Act 1925 (U.K.)
Section 30 of this Act repealed and restated the above two sections of the Act of 1884, and extended the provisions of those sections to real property, but did not otherwise change them. S.30(1) amended s.2 of the Act of 1884, and s.30(2) amended s.3 of the same Act. S.30(2) covering proceedings by the Crown was, however, later amended by s.34 of the next mentioned Act.
Limitation Act 1939 (UK)
Section 34 of this Act which is the section concerned with the repeal of earlier legislation, repealed in a small, but important, manner, the provisions of s.30(2) of the Act of the 1925 Act, by deleting the words “within the same time and” from that section. This had the effect of removing any suggestion of time limits applying to an action commenced by the Crown in respect of the personal estate of a deceased, such as had been the position under s.30 of the Act of 1884, as amended in 1930. Different rules have always applied to proceedings by the Crown relating to real property. Such proceedings by the Crown are commenced by the Solicitor General or the Treasury Solicitor, depending on the nature of the proceedings.
The Arguments of the Parties
The First Question
Is the plaintiff a state authority for the purposes of the Statute of Limitations 1957?
There is disagreement between the parties as to the meaning, scope and ambit of the language used in s.2(1) of the Statute of Limitations, 1957. The plaintiff’s argument is that s.2(1) does not simply limit “State authority” to those parties expressly set out in paragraphs (a) – (e). Rather, the definition is said to encompass other relevant persons, at least as concerns the Attorney General. For the purposes of this argument, the plaintiff invokes s.6(1) of the Ministers’ and Secretaries’ Act, 1924 set out above. On the basis of the wording of that section, and the 9th Schedule to that Act, which specifically refers to the branches and officers of the Chief State Solicitor’s department, including the Chief State Solicitor, since it is under the direct control and administration of the Attorney General, is, by virtue of the above provision, and for the purposes of s.2(1) of the Statute, an authority ‘being’ the Attorney General, and thus “a State authority” within s.2(1).
The defendant, on the other hand, argues that those included within the definition of a “State authority” in s.2(1) are only those expressly listed parties there mentioned. Since neither the plaintiff nor his predecessor, as Chief State Solicitor, is within the definition, neither can be a “State authority” for the purposes of s.2(1). On the argument arising under s.6(1) of the Act of 1924, while the defendant accepts that the administration and control of, inter alia, the powers, duties and functions of branches and officers of, inter alia, the Chief State Solicitor’s department, vested in the Attorney General, this did not, however, make the Chief State Solicitor’s department a “State authority”, but merely vested those functions and control in the Attorney General. Further, the defendant argues that on the documents before the Circuit Court, it was clear that the Attorney General at the time, had renounced his right to raise representation, and consented to the then Chief State Solicitor taking out the grant.
The defendant argues further, however, that the issue of his title to the premises by adverse possession has, in any event, been put beyond dispute by the decision of this Court in Gleeson v. Feehan (No. 2) [1997] 1 ILRM 522, which I deal with in greater detail below, but in the course of which it was stated that the title of the defendant in that case, was “adverse to the President of the High Court”, in circumstances where the defendant had occupied the premises for more than 12 years from the relevant date had passed. It follows, the defendant here submits, that on the facts of this Case Stated, the time to be calculated to establish his adverse possession of the premises is 12 years, in accordance with s.13(2) of the Statute of Limitations, and not the 30 year period provided for under s.13(1), in favour of a State authority. Therefore, since he took possession of the premises in 1982, 17 years before the Grant of Letters of Administration, no title then vested in the plaintiff’s predecessor in July, 2000, as that title to the premises had been extinguished by reason of the defendant’s adverse possession of them. Whereas the defendant does not base his claim to the application of a 12 year limitation period as against the President of the High Court on any express provisions of legislation, implicit in his argument in reliance on the Gleeson, supra. case, is that 12 years is the correct period in law to be applied.
The Second Question
Having regard to sections 23 and 24 of the Statute of Limitations 1957, is the relevant limitation period in this case prescribed by s. 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?
Under this heading, the plaintiff also submits that, since these proceedings are “an action for the recovery of land”, as expressly referred to in s.13(1) of the Statute of Limitations, brought by the administrator of the estate of a deceased person, s.23 of the Act also applies to it. It follows, therefore, that even if Chief State Solicitor is not, himself, a “State authority” within the meaning, or for the purposes, of s.2(1) of the Statute, the plaintiff, as administrator of the estate, is nevertheless entitled to succeed against the defendant. The time that had elapsed between the death of Mrs. Dolan in 1981 and the date of the grant of Letters of Administration in July, 2000 is irrelevant, counsel for the plaintiff argues, as his action for the recovery of land must be treated “as if there had been no interval of time” between the two events. On this argument, the effect of s.23 is to permit the plaintiff to sue for and recover the premises from the defendant, once Letter of Administration were extracted, as occurred here.
The defendant, on the other hand, while accepting that s.23 permits relation back, contends that this provision applies solely to actions brought by an administrator in respect of tortious claims, which, the defendant contends, cannot be applicable to the facts as found in the Case Stated. To support this argument, the defendant relies on an extract from Spierin in A Commentary on The Succession Act 1965 and Related Legislation, paragraph [82], which will be considered below.
As to the provisions of s.24 of the Statute, while this also appears to be fairly straightforward on its face, each party again cites different case law to discern its meaning. The plaintiff invokes the interpretation found in Perry v. Woodfarm Limited [1975] IR 104 at p. 119, in which it was stated:
“In the case of land, the effect of the Statute is to destroy the title of the person dispossessed to the estate from which he has been dispossessed, but it does not destroy the estate itself.”
The plaintiff argues that the meaning of this statement is simply to clarify that no estate in the land is extinguished, and that what is affected is only the title of the party who, but for the dispossession, would be entitled to the premises. The plaintiff also submits that, in any event, in view of the combination of s.23 and s.13(1) of the Statute, a thirty year period exists during which the plaintiff can bring a claim, which taken alone, is sufficient in the context of the facts in the present Case Stated, to defeat the defendant’s claim to be in possession “adverse to the President of the High Court”. As a result, s.24 can have no limiting effect on the plaintiff’s claim against the defendant.
The defendant, on the other hand, contends that Perry v. Woodfarm Homes Limited, supra., as followed in Gleeson v. Feehan (No. 2) [1997] 1 ILRM 522 supports his argument that he acquired title by adverse possession as against the President of the High Court and, as a result, the plaintiff’s title was extinguished 12 years after the date of death of Mrs. Dolan, and nothing, including a later purported grant of Letters of Administration, could revive it. The defendant invokes the following extract from the judgment of Keane, J. in Gleeson v. Feehan (No. 2), supra:
“As s.24 of the Statute of Limitation 1957 extinguished the title of the President of the High Court to the land and his right to bring an action to recover the land, no estate or interest could thereafter be vested by anyone in the next-of-kin, regardless of whether the next-of-kin were in or out of possession. The grant of letters of administration to the estate of James Dwyer could not revive the title to the land which had been extinguished by s.24.”
The Third Question
Is the answer to (b) affected by s.65 of the Succession Act, 1965?
For purposes of clarity, the defendant’s position is set out first. He relies on this provision, together with s.3(1) of the Statute of Limitations 1957, to support his argument as to the appropriate limitation period. He submits that these two provisions, taken together, dictate that any proceedings instituted by the State in respect of the intestate estate of a deceased person, must be dealt with as if the grant of Letters of Administration had been made to a “person”, in which case a 12 year – rather than a 30 year – limitation period applies. The defendant also submits that since there is no express provision to the contrary in the Act of 1965, the plaintiff must be treated as a private individual for the purposes of that Act, and all limitation periods contained in it. To support this argument, counsel looks to earlier English legislation, commencing with s.30 of the Administration of Estates Act 1925 itself, which will be discussed further below, as well as to the commentary on that section found in Williams, Mortimer and Sunnucks on “Executors, Administrators and Probate” which is in the following terms:
“Where the Crown or its nominee claims land in the course of administration of a deceased person’s estate, the position is governed by section 30 of the Administration of Estates Act 1925. The limitation period applicable to an action by the nominee of the Crown, who had obtained a grant of letters of administration, to recover land forming part of an intestate’s estate is 12 years, for the effect of the Administration of Estates Act 1925 is to put the nominee in the same position as the subject for limitation purposes.”
The defendant also relies on s.14(1) of the Statute of Limitations, 1957 contending that, under that provision, since Mrs. Dolan was the last person in occupation of the premises, the right of action against a person dispossessing her by adverse possession, accrued on her date of death.
The plaintiff presents two arguments on s.65 of the Act of 1965 and its application to this case. First, counsel submits that, in adopting the Act of 1965, the Oireachtas made a deliberate decision to exclude the issue of limitation periods from the reach of s.65. In support of this point, the plaintiff cites the equivalent of s.65 in the earlier English Act of 1884, above cited. The Act of 1884 only governed personal estate. It was only subsequently amended by the s. 30 of the Administration of Estates Act of 1925 to include real estate, and, at that time, the limitations invoked by the defendant. Secondly, it is said, that the Oireachtas had all of the prior language available to it from corresponding English legislation, in order to decide whether or not it wished to displace the provisions of the Statute of Limitations when enacting s.65 of the Act of 1965, but it chose not to do so. Thirdly, counsel submits that the term “the same rules of law” in s.65 of the Act of 1965 does not, in any event, include a statutory provision or enactment such as the Statute of Limitations, but is instead limited to judge-made rules or case law only. The plaintiff cites T v. L (Unreported, High Court, 23rd November 2001) [at p.15] in support of this argument, and also invokes the distinction made between a “rule of law” and an “enactment” or “statutory provision” in the following statutory provisions in contending that his interpretation is to be preferred, because it is correct in law. The examples include s.12(1) of the Succession Act, 1965 itself which states: “All enactments…and rules of law …”; s.45(1) of Courts and Courts Officers Act, 1995 which states: “any enactment or rule of law…”; s.2 of European Convention on Human Rights Act 2003, which speaks of “statutory provision or rule of law”. As to s.3(1) of the Statute of Limitations, invoked by the defendant, the plaintiff submits that this is of no application, as there is an express provision, namely in s.13(1) of the same Statute, which applies to proceedings by a State authority, including the plaintiff.
Conclusion: Preliminary
Although a significant amount of legislation and some case law was opened to the Court on the hearing of this appeal, and the interaction of some of that legislation is complex, I am of the view that it is necessary first, to clarify in simple terms, or as simply as possible, the legal position obtaining in the administration of an intestate estate, in particular of the type in issue here, and the status of several of the players, including that of the Attorney General, the Chief State Solicitor, and the President of the High Court, as well as an Administrator of an intestate estate. It is also necessary to say something about the rules of court applicable to proceedings of this nature.
The Role of an Administrator
I start with an administrator, and the general position in the case of administration of an intestate estate with no time limit issues arising. In such circumstances, there may be next of kin or none, and the deceased may have died wholly or only partly intestate. In either event, the grant of Letters of Administration is made with a view to the proper administration of the intestate estate. Under the provisions of s.10() of the Act of 1965 the whole of the intestate estate vests in the personal representative, who nevertheless does not hold the estate on his own behalf, but (under s.10(3)) as a trustee for the persons in law who are entitled to it, and he must act accordingly. Those persons have an immediate beneficial equitable interest in the estate by way of trust, which is, nevertheless, subject to rights of the administrator, who has certain powers, including, for example, those for the purposes of disposition. The power to deal with the property of an intestate dates only from the date of grant, however, (as opposed to the position of an executor of a person who dies testate where the property vests on death).
An administrator, acting in accordance with the provisions of the Act of 1965, is charged with collecting in all assets, paying all relevant debts, and on completion of the administration, vesting the assets in the beneficiaries entitled on intestacy. This is not to say, however, that although the administrator must act as aforesaid, he cannot himself take property by adverse possession. He can, as is provided for in Part V of the Act of 1965. That is not, however, an issue in the present case. Such an event is most likely to arise where a next of kin within a family raises representation, and either takes possession, or is already in possession, of property within the estate, and retains it for a limitation period of, say, 12 years, as against other next of kin, even siblings, not in possession, who would otherwise have been entitled, on final administration, to that part of the estate, a situation which arose in Gleeson v. Feehan (No. 2), supra., although in that case there was also a non-next of kin (“a stranger”) in possession, adverse to the parties otherwise entitled. During the course of administration, if a party, such as a next of kin or a stranger (but most often a next of kin) in possession, seeks to assert adverse possession in land the subject of administration, the administrator may sue for possession, or defend a claim to title by adverse possession, acting at all times in the interest of the eventual beneficiaries.
Rules of Court Relating to Administration Proceedings
In the normal course of events, and absent administration, where parties are in dispute in relation to the ownership of land, a defendant who raises a defence of adverse possession, may do so against a plaintiff claiming title to the land – the most usual situation – or against a third party. If a defendant contends he has acquired adverse possession as against a third party not already a party to the proceedings, he must also counterclaim naming the third party as the person against whom he sets up his claim, so that such third party has an opportunity to be heard. In the case of an administration, of course, several other non-possession next of kin (as ultimate beneficiaries) may well be parties against whom a defendant sets up a claim to adverse possession. In the case of an intestate estate, as here, the administrator when bringing proceedings or defending an adverse possession claim, is deemed to act in the interest of all those ultimate beneficiaries otherwise entitled to the property but for the adverse possession claimed. Because of this, and to avoid unnecessary depletion of the estate, those parties do not have a right to be joined as parties separate to the administrator. This is both straightforward and sensible and should not create complexity, whatever the eventual outcome of any such proceedings, since it is undesirable that a myriad of persons having the same interests being protected by the administrator should be joined separately in proceedings. It is only where, in special circumstances, on an application to court, a separate party might be joined in such proceedings. Order 15, Rule 8 of the Rules of the Superior Courts provides accordingly. Analogous provisions exist in the Rules of the Circuit Court.
As is clear from Gleeson v. Feehan (No. 2), supra., and other cases, when an administrator sues or defends proceedings concerning adverse possession of land, the limitation period affecting the administrator depends entirely on whose interest he represents, that is, on the identity of those who, but for such a claim, would be entitled to the land or premises. In that case all of the parties involved were persons who were next of kin, and a stranger – all subject to a 12 year limitation period under the Statute of Limitations. As will be seen later, no other limitation period was considered in that case.
Once administration is completed, the administrator must ensure the property vests in the ultimate beneficiary, that is, in the present case and absent the defendant’s claim, in the State, or its nominee, likely to be the Minister for Finance, pursuant to legislation in that regard.
The Position of The President of the High Court
The position of the President of the High Court was also part of the argument before this Court, once the defendant pleads in his defence adverse possession “against the President of the High Court”, after a period of 12 years from 1982. That reflects an extract from the decision of this Court in Gleeson v. Feehan, supra. Before considering that case, it is however important to consider the President’s role and status. As mentioned, under the provisions of s.13(1) of the Act of 1965 the estate of, inter alia, a person such as Mrs. Dolan dying intestate, vests in the President of the High Court as a corporation sole, between the date of death and until Letters of Administration are granted. The President, however, is not entitled, nor would his estate be entitled, to deal with or dispose of the estate, in his own right, or at all. He has no beneficial interest in the estate, and s.13(1) imposes on him no powers, no duties and no obligations. It is precisely to avoid such an estate being left, in effect, in limbo, that s.13(1) vests the estate in him, pro tem. It, in a sense, “hovers” in the person of the President of the High Court for the time being, by means of a legal fiction, until something else happens. In the case of intestacy, the first necessary condition, the estate vests in him automatically on death. It remains so until the second condition occurs, that is, the grant of administration and the appointment of the personal representative, on which event he is divested of the estate, also automatically. The mechanism adopted in the Act of 1965, which mirrors previous legislation, is a mere “mechanism of convenience”, as it is described in the case law, and to ensure that an estate has a temporary home pending the grant of administration. It becomes clear, however, on a consideration of the case law, not considered in Gleeson v. Feehan, supra., and discussed below, that there is no beneficial or other estate vested in the President, against which a claim to adverse possession can be made. At most he has, on a temporary basis, a bare estate in the property in question. In these proceedings, not surprisingly, he was not joined as a party, was not represented, and no order was sought against him.
I am fortified in my view that the President of the High Court does not hold any interest in the property which vests in him temporarily, sufficient to permit a third party to secure rights by means of adverse possession, by a consideration of his role in the devolution of the property upon administration Apart from the fact that, as mentioned below, Letters of Administration are not granted to the Attorney General (or the Chief State Solicitor) by or on behalf of the President of the High Court, which would be the logical position, if the intestate estate vests in him in any real sense, when such property is eventually to vest in the beneficiary at the end of the administration, the President of the High Court plays no role in that either. He does not even assent to the vesting of such bare estate as is vested in him temporarily under the Act of 1965. His interest is not mentioned as a party to any devolution of the property in any of the learned academic writings, such as in Wylie on Conveyancing, nor is his English equivalent mentioned in Halsbury, nor in any other writing I have been able to research. Nor have I been able to trace any case law in which the President of the High Court, nor indeed the Ordinary in whom such estates temporarily vested prior to the modern legislation, in which any court has held that those parties had such an interest in an estate, which could support an adverse possession claim. In the case of the Ordinary, at least, he held the estate as Trustee, whereas, according to the case law to which I refer below, the President of the High Court does not hold it even in that capacity.
The Position of the Attorney General and the Chief State Solicitor
The Attorney General is the legal representative of the State in all legal proceedings. The State does not, in general, act in its own name, independently of its Ministers or others officers, although it may, of course, do so. It acts through Ministers, including the Minister for Finance. The Attorney General falls into a different category to Ministers of state and those other parties mentioned expressly in s.2(1) of the Statute of Limitations. The Attorney General may hold property, qua Attorney General, although I do not know in what circumstances this occurs, but undoubtedly is also entitled to deal with the State’s own property and in property to which it may become entitled, such as on an intestacy, by virtue of the unique position of the Attorney General as such legal representative. No limitation is placed on the scope of the Attorney General’s role as a “State authority” in s.2(1), and he/she may act in more than one capacity, although always for an on behalf of the State, or on behalf of a Minister of State. The State itself is not separately represented in the list, although it must be accepted as a given, and, in the course of argument was accepted by counsel for the defendant, that it would be entitled to raise representation to the estate of Mrs. Dolan. But if it did so decide, it would act through the Attorney General, or the Chief State Solicitor. In circumstances where the State is the ultimate intestate successor to an intestate estate, as here, the Attorney General may act as a “State authority”, and, as such, clearly is within the ambit of s.2(1) of the Statute.
For the purposes of extracting a grant of Letters of Administration of an intestate estate, the application is not made by or on behalf of the President of the High Court, in whom the estate formally vests. According to the terms of the Grant of Letters of Administration in the present case, which appears to be in a standard format, the grant was made to the named party, Laurence A. Farrell “for and on behalf of the State”, and correctly I believe, was not made on behalf of the President of the High Court. When an Attorney General secures Letters of Administration, he does not – any more than any other administrator – do so, qua beneficial owner, but as personal representative of the estate, acting in the interests of the party entitled as beneficial owner, that is in the present case, the State, as ultimate beneficial owner.
There does not, however, appear to me to be any reason why Letters of Administration cannot, with the consent of the party otherwise entitled, issue to another appropriate party, such as the Chief State Solicitor, as indeed occurred in the cast of Gleeson v. Feehan (No. 2), supra. In this application, apart from querying the devolution of the grant from the originally nominated Chief State Solicitor to the present plaintiff, in truth no objection was raised to a Chief State Solicitor being granted Letters of Administration. S.65(1) and s.65(3) of the Act of 1965 expressly recognises that the Chief State Solicitor is an appropriate person to be granted Letters of Administration, on behalf of the State. The objection which is raised is that he could not have done so, qua “State authority”.
Decision on The Three Questions
The First Question
S.2(1) of the Statute of Limitations, 1957 is clearly intended by its terms to protect what might be called “state property”, that is, the type of property that formerly vested in the Crown. In providing that, as concerns the parties included in s.2(1), the limitation period is, at 30 years, significantly longer that in the case of a private person, the Oireachtas clearly intended that in respect of such property – of whatever nature, and from wheresoever emanating, once the State owns or is beneficially, or otherwise entitled in law to the same – a longer limitation period is to have effect.
Under the provisions of s.2(1) of the Statute of Limitations, it is submitted by the defendant that since the Chief State Solicitor is not a party mentioned in that section, he cannot be a “State authority”. I am satisfied that the defendant’s argument on this point is the correct one, and that the plaintiff is not, himself, a “State authority” within the section. Other parties listed, including the Attorney General, may also hold State assets, including lands, or represent the State in relation to them, and the State will protect such property, inter alia, from being adversely acquired. In the case of s.2(1), several of the Ministers included in the first group there cited, may, or do, have land vested in them, as opposed to it being vested in the State, simpliciter. Simple examples include military barracks, airports and the foreshore which may be vested in the Minister for Defence: roadways in the Minister for Local Government: harbours and ancient monuments in the Commissioners for Public Works. Lands were, and may still have been until recently, vested in the Land Commission, and as concerns the Revenue Commissioners, real property may also vest in them, for example, on the recovery of assets procured through the proceeds of crime or on execution of revenue debts. It is readily understandable why all of the parties listed in s.2(1) fall within the category of “State authority” for the purposes of real property, of whatsoever kind or type.
I also accept the defendant’s argument that, even if the plaintiff, or any predecessor to him, is – pursuant to the provisions of the Act of 1924 – under the control of the Attorney General, he is not himself, a “State authority” within s.2(1). I am satisfied that, notwithstanding the close relationship between the Attorney General, as a State authority, and the Chief State Solicitor, there is no basis for concluding that the latter is a “State authority” for the purposes of s.2(1) of the Statute of Limitations. The terms of s.6(1) of the Ministers and Secretaries Act 1924 are not sufficiently broad or inclusive to support the plaintiff’s claim in that regard. That subsection deals with two situations: (a) the “vesting in” the Attorney General of, inter alia, the “powers … duties … and functions…” formerly vested in the Attorney General for Ireland, and (b) the “administration and control” of the “powers, duties and functions …” of the branches and officers of the public service (including the Chief State Solicitor as per the Ninth Schedule). But the powers, duties and functions remain those of the Chief State Solicitor. That phraseology does not support the plaintiff’s contention that a Chief State Solicitor is a “State authority” for the purposes of s.2(1) of the Statute of Limitations, or as “being” the Attorney General for the purposes of s.2(1). This is clear from the wording of the section itself which is expressly limited to those parties who fall within it. Moreover, since the list of parties in that subsection very clearly represents parties likely to hold property, and include the legal representative of the State in the persona of the Attorney General, there seems no need to have any other party included in the category, since this would simply add a layer of legal persons acting in the same cause and for the same end, and in respect of the same beneficiary. I am satisfied, therefore, that the plaintiff is incorrect in his assertion that he is a “State authority”, such as to enable him, in that capacity, to claim a 30-year limitation period in respect of the premises.
The purpose of the argument as to whether of not the plaintiff is a “State authority” is in order to apply the appropriate limitation period. I am not satisfied that merely because he is not a State authority, within s.2(1) of the Statute of Limitations that, nevertheless, determines the limitation period. The answer to question one, therefore, is that the plaintiff is not a “State authority” within s.2(1) of the State of Limitations. However, that response does not determine whether, in the circumstances of this case, a 30 year limitation period applies. It is therefore necessary to examine that issue in greater detail.
I deal first with the question of the defendant’s claim to be a person in “adverse possession” of the premises since 1982, as against the President of the High Court, and his contention that title to the estate was extinguished, pursuant to s.24 of the Statute, at the very least well prior to the date of the grant of Letters of Administration in July, 2000. He argues that such a result is clear from the judgment of this Court in Gleeson v. Feehan (No. 2), supra. This argument, however, does not seem to me to flow logically from the facts leading to the decision in that judgment, notwithstanding the language used. All the parties in that case were individuals and therefore the limitation period in issue was 12 years. Indeed, there had been an earlier decision on the same estate, Gleeson v. Feehan (No. 1) [1993] 2 I.R. 113, in which a dispute arose as to whether a limitation period of 6 years as opposed to 12 years applied. It is clear, therefore, that many different limitation periods exist. The primary issue in the second case, concerned, first, whether or not, as against other family members (otherwise next of kin) not in possession of the land, but claiming to be entitled to a share in it, a next of kin in possession was entitled to succeed against them. A second important issue concerned possession by a next of kin together with a stranger in possession, and their rights as against other next of kin. These issues are clear from the questions posed in the Case Stated itself, which were in the following terms:
“1(a) Where, prior to the Succession Act, 1965, several next-of-kin in actual occupation of lands of a deceased person acquired title to those lands by adverse possession against the personal representative, was the title so acquired the title to which they would have been beneficially entitled on due administration?
(b) Where such next-of-kin acquired title by adverse possession against other next-of-kin not in occupation, was such title acquired as joint tenants?
2. Where such next-of-kin in actual occupation shared such occupation with persons other than next-of-kin, was the possession of such other persons adverse possession against (a) the personal representative or (b) next-of-kin not in occupation?
3. If the answer to 1 (a) or 1 (b) is yes, was such title acquired jointly with the next-of-kin in occupation as (a) joint tenants or (b) tenants in common?”
(emphasis added)
It is true, as counsel for the defendant notes, that Keane, J. (as he then was) in a unanimous decision of this Court, and in the course of a lengthy judgment, mentioned the President of the High Court. What he actually stated was as follows:
“As s.24 of the Statute of Limitations 1957 extinguished the title of the President of the High Court to the lands and his right to bring an action to recover the land …”
(emphasis added)
However, although that statement was made, it was not, it seems to me, the ratio of the decision, and nor was it, strictly speaking, necessary for the determination of the questions raised. The questions did not even mention the President of the High Court. Nor, according to the judgment, was any issue argued as to the status or role of the President of the High Court under the Succession Act, 1965, or under earlier legislation. No order was sought against the President of the High Court. Nor was any issue raised as to whether, as against the President of the High Court – in a claim based on the State’s ultimate entitlement to an estate – as here – a different period of limitation might apply. The judgment gives no reasons for the implicit assumption that a 12 year limitation period applies to property vesting in the President of the High Court under s.13(1) of the Act of 1965. Moreover, the plaintiff in Gleeson, supra., was the personal representative of the next of kin, and, as such, argued, not on his own behalf, but as representing the interests of those next of kin who would otherwise have been entitled to the estate on intestacy (analogous to the position of the State in this Case Stated), and against whom adverse possession was claimed. It seems clear reading the judgment that there was no argument at all leading to the statement made, and now relied on in this Case Stated, and the very detailed arguments made in the case on the actual issues arising from the questions, take up almost the entire of the judgment. If it was intended to determine that adverse possession was procured as against the President of the High Court, then, with respect, I consider this not to be a correct statement of the law, as contended for by the defendant. For the reasons explained above, as to his status, and having regard to the case next mentioned, I consider that the mention of adverse possession as against the President of the High Court in Gleeson v. Feehan (No. 2), supra. can only properly be understood in the shorthand sense that, once title adverse to the interest of the relevant next of kin who would have been entitled to the property upon administration, absent rights acquired by the non next of kin stranger, in that case, the role of the President of the High Court, and his interest in the property, ended at that date.
The role of the President of the High Court under s.13(1) of the Act of 1965 was, however, directly in issue in the decision of the High Court in Gladys Flack and another v The President of the High Court (Unreported, The High Court, 29th November 1983) in which Costello, J (as he then was), dealt with an application to strike him out of proceedings commenced by the plaintiffs, on the basis that he had been wrongly joined. The circumstances were as follows. There had been in existence a partnership, never formalised, created by five brothers, and all of whom had died, some testate and others intestate. The last of the two brothers died intestate in 1982, and a row broke out between the members of the several families of the deceased brother partners, in respect of which two sets of High Court proceedings had been commenced. These were commenced by the executors of one of the 1982 deceased for the taking of an account and for an order for sale of the partnership assets. No representation had, however, been raised to the estate of the other brother to die (intestate) and the executors joined the President of the High Court as a party on the basis of s.13(1) of the Succession Act, 1965, on the basis that the property vested in him, in the absence of an administrator. As was pointed out in that case, the plaintiff, as in the case of the defendant in this Case Stated, had sought no order against the President.
The learned High Court judge granted the order striking out the proceedings as against the President of the High Court. Before doing so, however, he analysed the legal position of such an administration pre-1965, and of the status of the President, tracing the matter back to the Probate Act (Ireland) 1857 which abolished the jurisdiction of the then diocesan courts in Ireland in testamentary and intestate business and established a new court “the Court of Probate”. He explained the rationale of his judgment as follows:
“I do not think that it was proper so to join the President. To explain this conclusion I think I can best begin by referring to the pre-1965 position. The Probate Act (Ireland) 1857 abolished the jurisdiction in testamentary and intestate business of the diocesan courts in Ireland and established a new court, ‘the Court of Probate’. By section 15 of the Court of Probate (Ireland) Act 1859 it was provided that:-
‘From and after the decease of any person dying intestate, and until letters of administration shall be granted in respect of his estate and effects, the personal estate and effects of such deceased person shall vest in the judge of the Court of Probate for the time being, in the same manner and to the same extent as heretofore they vested in the Ordinary.’
By virtue of the provisions of the Judicature Acts and later the Courts of Justice Acts, the personal estate of persons dying intestate until letters of administration were granted vested firstly in the Judge of the Probate and Matrimonial Division, and later in the President of the High Court.
Section 15 of the 1859 Act was repealed by the Administration of Estates Act 1959 but the vesting of the personal estates of persons dying intestate in the President remained the same for section 13 of that Act provided:
‘Where a person dies intestate, his real and personal estate, until administration is granted in respect thereof shall vest in the President of the High Court in the same manner and to the same extent as formerly in the case of personal estate it vested in the Ordinary.’
Section 13 of the 1959 Act was repealed by the Succession Act 1965 but was re-enacted with only slight modification by section 13 to which I have already referred.
I think it is worthy of note that neither under the 1859 Act nor under the 1959 Act was the President of the High Court ever joined as a defendant in proceedings arising from the vesting provision to which I have referred. The reason was perfectly clear. In vesting personalty and later both realty and personalty in the President, the legislature did not make him a trustee of the estate which vested in him and he had no duty to perform and no obligation in respect of the estate. As was pointed out in relation to the vesting provisions of section 9 of the Administration of Estates Act 1925 in England (which are similar to those I am considering) these vesting provisions are ‘a mere matter of necessary convenience and protection’ (see re Deans 1954 1 A.E.R. 496 at 498). The President’s position under the 1965 Act is exactly the same.” (emphasis added)
This judgment, although unreported, has been cited in two other decisions of the High Court, although in related contexts. Moreover, the decision in re: Deans, supra. has been adopted as correct in recent decisions of the English Court of Appeal, in Earnshaw v Hartley [1999] EWCA Civ 1141.
I consider that had the above case law been brought to the attention of and considered by the Supreme Court in Gleeson v. Feehan (No. 2), supra., it is unlikely the learned Supreme Court judge would have made the statement found in the judgment as to the role of the President. The defendant’s defence, and the limitation period applicable to his claim to adverse possession as against the President of the High Court must be considered in light of the above case law, and of the true legal position arising in an administration of the type at issue here, which gave rise to the questions posed in the present Case Stated.
In the present case, the only parties whose interest are in issue are the defendant, who claims squatters’ rights, and the State, represented by the plaintiff. This is clear from the grant. Looking at the Grant of Letters of Administration, it provides as follows:
“Be it known, that on the 21st day of July 2000 Letters of Administration of all the estate which devolves to and vests in the personal representative of Alice Dolan late of 6 Enniskerry Road Phibsboro Dublin deceased… were granted by the Court to Laurence A. Farrell of Osmond House Little Ship Street Dublin Chief State Solicitor for and on behalf of the State the Attorney General of Ireland Michael McDowell having duly renounced his right and consented hereto the said Laurence A. Farrell.” (emphasis added)
From the language of this document it is clear that the Attorney General was the person entitled, on behalf of the State, to raise representation to the estate. He in turn delegated a task assigned to him to another person who acts on behalf of the State. From the numerous tasks assigned to the Attorney General in the Ministers’ and Secretaries’ Act 1924, such as the right to raise representation, delegation would appear necessary and unexceptional for such duties to be executed effectively and efficiently. Secondly, and perhaps of more importance, it seems to me that the Attorney General’s role, in so far as the Letters of Administration are concerned, is an administrative one, although one having legal consequences. He is the legal officer who acts for and on behalf of the State in a myriad of events and circumstances. He is therefore the person entitled to make application for letters of administration for and on behalf of the State. As such, he may delegate that role to any other authorised person. In Gleeson v. Feehan (No. 2), supra., the personal representative had been granted Letters of Administration pursuant to a power of attorney. In this case, the Attorney General consented in writing to Lawrence A. Farrell being appointed, as nominee of the State. The Chief State Solicitor, pro tem, appears clearly to be a person who may act for and on behalf of the State, on the instructions of the Attorney General, in applying for Letters of Administration, and has done so in the present case. The Act of 1965 recognises this possibility in s.65(1) and s.65(3). The application for the grant of Letters of Administration to the Chief State Solicitor, pro tem, thereafter, and devolving to his successor, the plaintiff, is also in accordance with the Act of 1965, is perfectly proper.
It would, in my view, be wholly inconsistent to have a procedure whereby the Attorney General renounces his right to raise representation on behalf of the State, and appoints another individual under his control to act on behalf of the State, as administrator, if by doing so the State’s rights under s.2(1) were eliminated. I can find nothing in the legislation, or in any case law, that suggests this as a result only of such a renunciation and appointment of the Chief State Solicitor, as administrator. That does not alter my earlier view that the Chief State Solicitor is not a “State authority”. The Attorney General’s “renouncement” in the grant is not a renouncement by him of the State’s entitlement in the estate under s.73 of the Act of 1995, or of any rights under s.2(1) of the Statute, but merely of the right to extract Letters of Administration.
The Second Question
Having regard to sections 23 and 24 of the Statute of Limitations, 1957, is the relevant limitation period in this case prescribed by s.13(1) of the Statute of Limitations, 1957 or by section 13(2) thereof?
An issue also arose under what is known in some jurisdictions, and in some authorities, as the doctrine of “relation back”. By this is meant that once letters of administration issue, the right of the administrator to protect the interests of the estate, relates back to the date of death of the deceased owner, as if no time had elapsed in the period between death and administration. Section 23 of the Statute, which provides for this, is set out earlier in the judgment. The doctrine was available at common law, but has now been incorporated into s.23.
The plaintiff’s interpretation of s.23 appears to me to be extremely and unjustifiably extensive, and is so broad as to render the limitations period moot. If s.23 was read so as to be applicable in the manner contended for by the plaintiff, then any period of time, be it eighteen years (at issue in this case) or one hundred years (which could be at issue in the future), could pass, without this intervening period affecting the administrator’s claim to land, once Letters of Administration eventually issue.
The defendant, on the other hand, relies on an extract from Spierin, referred to earlier in the exposé of his argument earlier in this judgment. On that basis, it is contended that the doctrine is only to be invoked in respect of claims of a tortuous nature for damage to the estate. I do not agree that this is so. The extract relied on in the written submissions is not quite complete, and the full extract is in the following terms:
“To overcome the inconvenience of the postponement of vesting in an administrator, the doctrine became established that the grant of administration when made would, for certain purposes, relate back to the time of the death of the deceased. The reason for this was to provide a remedy for wrongs done against the estate. Thus an administrator may, after the grant of administration, bring an action in respect of tortious injuries to the estate in the interval between death and grant, or bring an action for breaches of covenant during the interval by a lessee of the deceased’s land. See also the Statute of Limitations 1957, s.23, in relation to actions by an administrator to recover the land.” (emphasis added)
While the defendant’s argument as to the limitation on the meaning of s.23 is based on the above extract, I am not satisfied that this proposition can be correct. There is no limiting language within the provision which supports the defendant’s contention that the author suggests, in turn, that s.23 applies only to tortious claims arising in the intervening period. On a reading of the extract, it is not what the author suggests is the scope of the section.
From the above exchanges, two things emerge. First there is no suggestion in the text relied upon that the relation back can only occur in the limited manner which the defendant contends for. Use of the phrase “wrongs done against the estate” cannot, in law, mean only claims of a tortious nature. I can see no basis for suggesting that a claim of adverse possession is not a wrong done against the estate. The use of the doctrine of relation back in the case of tortious claims is but an example of the circumstances in which it may apply. Secondly, it is of note that the author, while making specific reference to s.23 of the Statute does not suggest that it provides any limitation of the type the defendant invokes, on the application of the rule. The text of the section itself permits, on the application of the rule in actions for the recovery of land, itself broader than the defendant’s contention., when the relation back may apply to such “a claim”, and is no narrower.
The question arises therefore, as to the scope of the section, and if any limits are imposed on the relation back. No express limitation is found in Spierin, and indeed no limit is suggested either in Halsbury, where, dealing with the equivalent section (s.26 Limitation Act 1980), the doctrine is explained in the following terms:
“In order to prevent injury being done to a deceased person’s estate without remedy, the courts have adopted the doctrine thqt on the grant being made the administrator’s title relates back to the time of death. This doctrine has been consistently applied in aid of the administrator seeking to recover against a person who has dealt wrongfully with the deceased’s … real estate. It cannot be applied however to disturb the interests of the other persons validly acquired in the interval, or to give the administrator title to something which has ceased to exist in the interval, or to bind the administrator to an agreement made before the grant irrespective of its benefit to the estate.”
Halsbury also clarifies that the doctrine of relation back applies for the purposes of the statutory provisions limiting the time for bringing proceedings to recover land …, since the administrator is “deemed to claim” as if there had been no interval of time between the death and the grant of administration. This is in the same terms as s.23 of the Statute of Limitations, and equally applies only to the recovery of land. A similar approach is taken in the Australian writings, where somewhat similar, but not identical legislation in all States, is found.
It is clear from the above statement that if an interest has been validly acquired in the interval, or title has ceased to exist in the meantime, the doctrine cannot assist the administrator. When an administrator has been appointed, his title to the real estate relates back to the intestate’s death; see Re Pryse, 1904, P. 301, 306. All this concerns the application of the doctrine in the case law. S.23 of the Statute provides a statutory basis for the application of the doctrine of relation back, and is on its face, in broad and clear terms.
I am satisfied, however, that the section must be read so as to avoid the consequences of the approach contended for by the plaintiff. The best expression of the true meaning of the section is found in Jourdan on Adverse Possession 2002 [London], in which, in dealing with the English equivalent, he states:
“Under the general law, the estate of a deceased person vests in an executor at the moment of death. But an administrator’s title only vests on the grant of letters of administration, although for certain purposes it is treated as relating back to the death. Apart from the Limitation Act, 1980, s.26, time for bringing an action does not begin to run against the administrator until letters of administration are granted. The effect of s.26 is that time for recovering land runs against a deceased person’s estate, regardless of whether an executor or an administrator is appointed.” (emphasis added)
I am satisfied that this is a correct statement of the effect of the section. It means that, if in the interval between the death of an intestate and the appointment of an administrator, a party has procured a lawful interest in lands the subject of the administration, that interest may be sufficient to bar its recovery by the administrator, when appointed, acting in the interests of those who, but for such event, would have been entitled to the lands. In the result, time commenced to run against the estate for the purposes of adverse possession from either the date of death of Mrs. Dolan, or the date of possession by the defendant. In either event, in this case, well more than 12 years passed before July, 2000. It does not follow, however, in the present case, that by reason of this interpretation of s.23 of the Statute of Limitations, the claim of the defendant to adverse possession is thereby determined. That issue at all times depends on the appropriate limitation period.
Before dealing with the effect of s.13 of the Act on the issues arising, however, I should also dispose of the arguments under s. 24. That section appears to me, however, to be little more than a passage that spells out the consequences flowing from the expiry of the applicable limitation period – whatever that period may be. The estate itself in the land is not extinguished, but title to that estate may well be, if a party has successfully established that he has adversely possessed the property for the relevant period. I am not persuaded that s.24 has any substantive impact on, or is at all determinative of, which limitation period applies in the present case.
I now return to the real issue in this case, that arising under s.13 of the Statute of Limitations, which I find is not limited by the possible application of s.23. The role of the Chief State Solicitor’s is very material to the right in State authorities having the benefit of a 30 year limitation period under the provisions of s.2(1) of the Statute of Limitations. When the Attorney General renounces the right to seek Letters of Administration on behalf of the State (in whom the longer limitation period vests), and instead transfers that right to the Chief Solicitor, as already mentioned, I am satisfied he is entitled so to do, having regard both to the provisions of s.6 of the Act of 1924 and also to the provisions of s.65 of the Succession Act 1965. The consequence is that the relevant limitation period is not disturbed at all, and the Chief State Solicitor, as personal representative, cannot, by so acting, affect a limitation period which is determined by reference to the interests of persons otherwise entitled to the estate, in this case, the State, as intestate successor. As in the case of any other administrator, when the Chief State Solicitor is granted Letters of Administration on behalf of the State, he takes no beneficial interest in the estate in his own right, but can only act as and how required by law, as a trustee for the benefit of the ultimate beneficiaries. That position is no different to the position of an administrator who acts for personal beneficiaries.
Although in the Case State, and in argument, much emphasis was laid on the claim by the plaintiff to be a “State authority” within s.2(1) of the Statute of Limitations, and I have rejected that plea, I have also found that Letters of Administration were correctly granted to the former Chief State Solicitor, and the plaintiff as his lawful successor, has, as personal representative both the right and indeed the obligation in law, both to bring proceedings in respect of the recovery of the premises, and to defend the claim to adverse possession, representing the beneficiary, that is, the State, and including claiming the appropriate limitation period on its behalf. If on the other hand, he were an administrator acting for an on behalf of an individual, the period would be the shorter period of 12 years applicable to the beneficiary, namely, a person with s.13(2) and the period would be 12 years. This approach is unexceptional. I know of no case in which an administrator is entitled to alter or reduce the statutory period of limitation applicable to the beneficiary otherwise entitled, or is subject to a lesser period than that to which a beneficiary is entitled.
There is another reason why I do not think the position is determined by his presence or absence as a named State authority in s.2(1) is because, if for any reason, he was not entitled to raise representation to the estate of Mrs. Dolan, because he is not a State authority, then it would be perfectly possible for the grant to be set aside on consent. If that occurred, it would be a simple matter for the Attorney General to reapply for Letters of Administration to be granted to him again on behalf of the State, and commence fresh proceedings before the expiry of the 30 year limitation period. There might be costs implications in such an approach of course, but as to the substantive position, the consequences of the plaintiff not being expressly mentioned in s.2(1) as a State authority is immaterial to the applicable limitation period. Moreover, as mentioned earlier in this judgment, if a defendant pleads he has acquired adverse possession as against a person not already a party to the proceedings, such as in the present case against the President of the High Court, he cannot do so, as against that third party, by mere defence. He must instead counterclaim, naming the third party as the person against whom he sets up his claim, so that such third party has an opportunity to be heard. The third party against whom he has asserted adverse possession is the President of the High Court, against whom however no relief has been sought, and against whom no counterclaim was lodged. It seems to me unsatisfactory that the appropriate party(ies) have not been joined, while at the same time the defendant seeks to suggest that the ultimate beneficiary, the State, is a person on whose behalf the administrator is not entitled to invoke the State’s a 30 year limitation period. Had the appropriate parties been joined against whom the adverse possession assertion is made, then the position would have been quite different, and the President would have been removed from the proceedings, on the above case law, with the administration continuing on behalf of the State, with the State’s limitation period being applied.
In this Case Stated, the nub of the defence is, in reality, confined to whether or not the defendant had already acquired adverse possession of the property in July, 2000, as against the President of the High Court, long before Letters of Administration were granted. I now propose to treat that issue. I have already held that the vesting of the estate, pro tem, in the President of the High Court does not, and could not deprive the administrator of the limitation period vesting in the State. For the reasons I have already mentioned, the President only holds, pro tem, a bare estate in the property, but no sufficient interest against which adverse possession could be claimed, and the President has neither powers nor obligations in that regard, as is clear from the case law. The defendant has of course been clever in not joining the State or even the President of the High Court in the proceedings, as to do so would have entitled those parties to be heard, and to raise their interests and limitation period. He has relied instead on the statement in Gleeson v. Feehan (No. 2), supra. As to the State’s interest, it does not have to be joined in order for the personal representative to resist the adverse possession claim on the basis of the limitation period found in s.13(1), for the reasons given.
I am satisfied that the correct period of limitation applicable in the present case is that provided for in s.13(1) of the Statute of Limitations.
The Third Question
I mentioned in the preliminary part of my conclusions, before dealing with the three particular questions, that much emphasis was placed on the meaning to be attached to the provisions of s.65, the Succession Act of 1965 and on its predecessors, both Irish and English in support of the respective contentions of the parties.
I find it is possible to rule on the third question without difficulty. As to the s.65 of the Act, having regard to the provisions of the section itself, and to the legislative history of its predecessors, as set out above, I am satisfied that the plaintiff’s argument is the correct one in law. The earlier legislation in the United Kingdom, even though it refers, at least prior to 1921, only to the personal estate (limitation periods in respect of Crown land were always different), together with later amendments were clearly before the Irish legislature when adopting the provisions of the Act of 1965, which dealt with both realty and personalty, and the deliberate omission of any reference to enactments as opposed to rule of law it would have said so. The Administration of Estates Act, 1925 s.30(1), cited above, specifically includes, as concerns personal estate, the following:
“… except as otherwise provided by this Act, the rules of law and equity, (including the rules of limitation under the Statutes of Limitation or otherwise) …”
In passing, although not specifically mentioned in the course of the appeal to this Court, I should mention that S.30(2) which applied in like or similar manner to proceedings commenced by the Crown, was itself, as is clear from the above extracts, also amended by a later Act. For the reaons set out in my later conclusions, these provisions of English legislation must also be seen in light of their history.
On this issue, I am persuaded by the argument of the plaintiff. Contrary to the defendant’s contention in relying on English legislation, the language referring to “time limits” or similar limitation rules, that exists within legislation that preceded the Act of 1965 demonstrates that, when adopting s.65 of the Act of 1965, the Oireachtas made a decision not to have the provisions of s.2(1) of the Statute of Limitations pre-empted by the adopting language in s.65 so as to have that effect, buy amendment or otherwise. Further, there is a plethora of case law supporting the plaintiff’s argument that the term “rules of law” is limited to judge-made rules. Since the Statute of Limitations is a legislative enactment, this further solidifies the argument that s.65 provision should have no bearing on the correct limitation period applicable. Finally, section s.3(1) of the Statute of Limitations should similarly have no effect. This is because, as the plaintiff argues, there is an express provision (13(1)) which directly applies to the facts of this case: therefore, on its own language s.3(1) cannot be relied upon.
The provisions of s.65 do not affect the position.
I mention in passing that no question has been posed in the Case Stated on the issue of estoppel, although it was addressed by the parties in some detail. I make no comment on this aspect of the submissions of either party.
I would answer the questions posed as follows:
(1) The plaintiff not a State authority within s.2(1) of the Statute of Limitations.
(2) The relevant limitation period is that provided for in s.13(1) of the Statute of Limitations.
(3) No
Judgment of Mr Justice Finnegan delivered on the 16th day of February 2012
This matter comes before the court by way of a Case Stated from the Circuit Court pursuant to the Courts of Justice Act 1947 section 16. The questions raised on the Case Stated concern the appropriate limitation period within which, in the facts and circumstances hereinafter detailed, an action must be brought by a personal representative to recover lands forming part of the estate of a deceased in respect of whom the State is the ultimate intestate successor.
Facts agreed or found
The facts agreed or found by the learned trial judge are set out in the Case Stated as follows.
“1. The late Alice Dolan was the owner of a house at 36 Botanic Road, Dublin, which Dublin Corporation wished to acquire for the purposes of road widening. The Corporation made a deal with Mrs Dolan to acquire this property in exchange for a house at No. 6 Enniskerry Road, which the Corporation purchased with the intent that it would be conveyed directly to Mrs Dolan. An assignment dated 15th December 1978 between the vendors of No. 6 Enniskerry Road, the Corporation of the second part and the purchaser Alice Dolan of the third part was prepared. The assignment was executed by the vendors and by the Corporation but not by Mrs Dolan. The document has been stamped.
2. Mrs Dolan was allowed into occupation of No.6 Enniskerry Road. The Corporation carried out the road works involving 36 Botanic Road which are long since complete.
3. Mrs Dolan died intestate on the 22nd October 1981. The defendant learned of Mrs Dolan’s death, and the apparent absence of next-of-kin, in the course of his auctioneering business, and broke into the premises through the back door in February 1982. The late Alice Dolan, nee Alice Williams, had shared the house at 36 Botanic Road with her sister Mary Williams who predeceased her. Her husband had died in 1969.
4. A citation was issued on the 21st January 1998 and letters of administration were extracted on the 21st July 2000 by the plaintiff’s predecessor as Chief State Solicitor, Laurence A. Farrell, for and on behalf of the State, the Attorney General, Michael McDowell,(note: in fact David M. Byrne) having duly renounced his right and consented thereto.
5. These proceedings were issued on the 14th May 2002 and served on the 24th May 2002. The plaintiff brings the proceedings in his capacity as Chief State Solicitor and as successor to Laurence A. Farrell, who was appointed as personal representative of the estate of Alice Dolan, for inter alia an injunction directing the defendant to vacate the dwelling house and lands and to forthwith deliver up possession of the same to the plaintiff.”
Documents
From the documents annexed to the Case Stated it appears that Alice Dolan (hereinafter “the deceased”) by virtue of an assignment dated the 15th December 1978 became entitled to the leasehold interest under an indenture of lease dated 18th March 1902 in the premises 6 Enniskerry Road in the City of Dublin for a term of two hundred and forty five years from the 25th March 2002. The deceased died on the 22nd October 1981 intestate leaving no known next-of-kin her surviving. On the 26th September 1997 David M. Byrne the Attorney General executed a consent in the following terms:-
“And I hereby consent that Letters of Administration in the estate of the said deceased be granted to Michael A. Buckley, Dublin Castle, in the City of Dublin, Chief State Solicitor, as nominee and on behalf of the State. And I hereby appoint the said Chief State Solicitor to file or cause this consent to be filed for me in the Principal Registry of the said Court.”
Michael A. Buckley duly set about obtaining a Grant of Letters of Administration Intestate. For that purpose he completed the Oath for Administration which contained the following averment:-
“That by an instrument in writing dated the 26th day of September 1997 on which marked ‘A’ I have signed my name, Mr David Byrne, Attorney General of Ireland, duly renounced on behalf of the State all rights to Letters of Administration of the estate and effects of the said deceased and consented that same should be granted to me.”
It is to be noted that this not an accurate recital of the terms of the consent of 26th September 1997 which merely consented to the application for Letters of Administration “as nominee and on behalf of the State”.
On the 21st July 2000 Letters of Administration Intestate were granted to Laurence A. Farrell in the following terms:
“Be it known, that on the 21st day of July 2000 Letters of Administration of all the estate which devolves to and vests in the personal representative of Alice Dolan late of 6 Enniskerry Road, Phibsboro, Dublin, barrister deceased who died on or about the 22nd day of October 1981 at James Connolly Memorial Hospital, Blanchardstown, Dublin, intestate, a widow and a citation to the next-of-kin (if any) and all persons interested and their non-appearance thereto having been deemed and taken as and for a renunciation of their rights were granted by the court to Laurence A. Farrell of Osmond House, Little Ship Street, Dublin, Chief State Solicitor, for and on behalf of the State the Attorney General of Ireland Michael McDowell having duly renounced his right and consented hereto the said Laurence A. Farrell having been first sworn faithfully to administer the same.”
No issue arises by reason of the succession from Laurence A. Farrell to Michael A. Buckley and to Desmond Grogan as Chief State Solicitor (see Succession Act 1965 section 65(3) post). Again no issue arises in relation to the succession of Michael McDowell to David M. Byrne as Attorney General.
Questions of law for determination by the Supreme Court
The questions of law for determination raised by the Case Stated are as follows:-
(a) Is the plaintiff a State authority for the purposes of the Statute of Limitations 1957?
(b) Having regard to sections 23 and 24 of the Statute of Limitations 1957 is the relevant limitation period in this case prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof.
(c) Is the answer (b) affected by section 65 of the Succession Act 1965?
The statutory provisions
The relevant statutory provisions are as follows.
Statute of Limitations 1957
Section 2. “State authority” means any authority being:
(a) a Minister of State, or
(b) the Commissioners of Public Works in Ireland, or
(c) the Irish Land Commission, or
(d) the Revenue Commissioners, or
(e) the Attorney General.
Section 3. (1). Save as in this Act otherwise expressly provided and without prejudice to section 7 of this Act, this Act shall apply to proceedings by or against a State authority in like manner as if that State authority were a private individual.
Section 13. (1)(a). Subject to paragraphs (b) and (c) of this subsection no action shall be brought by a State authority to recover any land after the expiration of thirty years from the date on which the right of action accrued to a State authority or, if it first accrued to some person through whom a State authority claims, to that person.
(2) The following provision shall apply to an action by a person (other than a State authority) to recover land –
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action first accrued to a State authority the action may be brought at any time before the expiration of the period during which the action could have been brought by a State authority, or of twelve years from the date on which the right of action accrued to some person other than a State authority whichever period first expires.
Section 14. (2) Where –
(a) any person brings an action to recover any land of a deceased person ,whether under a will or on intestacy, and
(b) the deceased person –
(i) was on the date of his death in possession of the land or, in the case of a rentcharge created by will or taking effect upon his death, in possession of the land charged, and,
(ii) was the last person entitled to the land to be in possession thereof
the right of action shall be deemed to have accrued on the date of his death.
Section 18. (1) No right of action to recover land shall be deemed to accrue unless the land is in possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
Section 23. For the purposes of the provisions of this Act relating to actions for the recovery of land, an administrator of the estate of a deceased person shall be deemed to claim as if there had been no interval of time between the date of the death of the deceased and the grant of letters of administration.
Section 24. Subject to subsection 25 of this Act and to section 52 of the Act of 1891 at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the lands shall be extinguished.
The Succession Act 1965.
Section 73.(1) In default of any person taking the estate of an intestate, whether under this Part or otherwise, the State shall take the estate as ultimate intestate successor.
Succession Act 1965
Section 65.(1) Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the Solicitor for the Attorney General or any other person), any legal proceedings by or against the administrator for the recovery of the estate or any share thereof shall be of the same character and be instituted and carried on in the same manner, and be subject to the same rules of law and equity in all respects, as if the grant had been made to the administrator as a person beneficially entitled to a share of the estate. (underlining added)
(2) Proceedings on behalf of or against the State in respect of the estate of a deceased person or any share thereof or any claim thereon shall not be instituted except subject to the same rules of law and equity in and subject to which proceedings for the like purposes might be instituted by or against a private individual.
(3) Where the Chief State Solicitor for the time being is administrator of an estate for the use or benefit of the State, he shall cease to be administrator on ceasing to hold office and his successor in office shall become administrator in his place without further grant.
Intestates Estates Act 1884
Section 2. Where the administration of the personal estate of any deceased person is granted to a nominee of Her Majesty (whether the Treasury Solicitor, or a person nominated by the Treasury Solicitor, or any other person), any action or other proceeding by or against such nominee for the recovery of the personal estate of such deceased person, or any share thereof, shall be of the same character, and be brought, instituted and carried on in the same manner, and be subject to the same rules of law and equity (including the rules of limitation under the Statutes of Limitation or otherwise), in all respects as if the administration had been granted to such nominee as one of the next-of-kin of such deceased person. (underlining added)
Section 3. After the passing of this Act an information or other proceeding on the part of Her Majesty shall not be filed or instituted, and a petition of right shall not be presented, in respect of the personal estate of any deceased person or any part or share thereof, or any claim thereon, except within the same time and subject to the same rules of law and equity in and subject to which an action for the like purpose might be brought by or against a subject. (underlining added)
Administration of Estates Act 1925 (U.K.)
This Act in section 30 repealed and restated sections 2 and 3 of the Intestates Estates Act 1884 and extended the provisions to real property. Subsection (1) restated section 2 and subsection (2) restated section 3 of the 1884 Act.
Limitation Act 1939 (UK)
Section 34 of the Act amended subsection (2) of the Administration of Estates Act 1925 by deleting the words “within the same time and”. However subsection (1) still provided for actions by and against an administrator who is a nominee of the Crown that the ordinary limitation should apply.
Submissions of the Plaintiff
The plaintiff submits that the relevant limitation period is that prescribed by section 13(1) of the 1957 Act the Chief State Solicitor being a State authority within the definition in section 2(1) of the Act. The definition does not simply define State authority as those set out at paragraphs (a) to (e) but extends to “any authority being” one of those Authorities. The Ministers and Secretaries Act 1924 section 6(1) and the ninth part of the schedule to that Act provide for the vesting in the Attorney General of the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the Public Services specified in the section and in the ninth part of the schedule: included in the ninth part of the schedule is the Chief State Solicitor’s Department. It is submitted that the Chief State Solicitor’s office, being under the administration and control of the Attorney General, it is for the purpose of the Statute of Limitations an authority “being” the Attorney General and so a State authority. Section 3(1) of the Act provides that the provisions of the Act shall apply to proceedings by or against a State authority in the like manner as if the State authority were a private individual unless it is otherwise expressly provided in the Act. Section 13(1)(a) of the Act expressly provides for a thirty year limitation period in respect of an action brought by a State authority to recover any land.
Insofar as the defendant relies on the Succession Act 1965 there are material differences between section 65 of the Act and the corresponding provisions in the Intestates Estates Act 1884 and the English Administration of Estates Act 1925 section 30 as amended by the Limitation Act 1939. The 1884 Act expressly refers to limitation periods in sections 2 and 3. The restated section 3 contained in section 30(2) of the Administration of Estates Act 1925 had the words “within the same time and” deleted by the Limitation Act 1939 section 34. The Succession Act 1965 section 65 subsection (1), corresponding to section 2 of the 1884 Act and subsection (2) corresponding to section 3 of the 1884 Act make no mention of Statutes of Limitation or time limits.
In referring to “rules of law and equity” in section 65(1) the reference includes statutory enactments and so includes the Statute of Limitations 1957.
Submissions of the Defendant
The definition of “State authority” is clear and there is no basis upon which the court should extend the same and in particular to interpret the phrase “the Attorney General” as including the Chief State Solicitor. As the plaintiff is not a State authority section 3(1) of the 1957 Act applies. The Statute of Limitations applies to proceedings by or against a State authority in like manner as if the State authority were a private individual unless it is otherwise expressly provided. As the Chief State solicitor is not a State authority section 13(1)(a) of the Statute of Limitations has no application. The relevant limitation period is that in section 13(2)(a), twelve years.
The effect of the Succession Act 1965 section 65(1) and (2) is to place a State nominee in the same position in relation to limitation periods as a private individual: accordingly the relevant limitation period is twelve years. Reliance is placed on the United Kingdom Administration of Estates Act 1925 section 30 and the Limitation Act 1939 section 34 and on the passage in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate at paragraph 64.06 which states as follows:-
“If the Crown or its nominee claims land in the course of administration of a deceased person’s estate, the position is governed by section 30 of the Administration of Estates Act 1925. The limitation period applicable to an action by the nominee of the Crown, who has obtained a grant of letters of administration, to recover land forming part of an intestate’s estate is twelve years, for the effect of the Administration of Estates Act 1925 is to put the nominee in the same position as the subject for limitation purposes.”
Section 65(1) of the Succession Act 1965 has the same effect in relation to the State as the United Kingdom legislation. The phrase “same rules of law and equity” in section 65(1) and (2) of the Succession act 1965 should be interpreted as including the statutory provisions as to the limitation of actions and in particular the provisions of the Statute of Limitations section 13(1)(a).
Discussion
(a) Is the Chief State Solicitor a State Authority?
The definition of State authority in section 2 of the Statute of Limitations 1957 is clear. There is within the definition or within the Act as a whole nothing to suggest that the Attorney General for the purposes of the Act includes the Chief State Solicitor. However, the plaintiff calls in aid the Ministers and Secretaries Act 1924 which provides as follows:-
“6(1) There shall be vested in the Attorney General of Soarstat Eireann (who shall be styled in Irish Priomh-Aturnae Shaorstait Éireann and shall be appointed by the Governor General on the nomination of the Executive Council) the business, powers, authorities, duties and functions formerly vested in or exercised by the Attorney General for Ireland, the Solicitor General for Ireland, the Attorney General for Southern Ireland, the Solicitor General for Southern Ireland, the Law Adviser to the Lord Lieutenant of Ireland and any or all of them respectively, and the administration and control of the business, powers, authorities, duties and functions of the branches and officers of the public services specified in the Ninth Part of the Schedule to this Act and also the administration and business generally of public services in connection with the representation of the Government of Saorstat Éireann and of the public in all legal proceedings for the enforcement of law, the punishment of offenders and the assertion or protection of public rights and all powers, duties and functions connected with the same respectively together with the duty of advising the executive council and the several ministers in matters of law and of legal opinion.”
The Ninth Part of the Schedule lists the particular services assigned to the Attorney General as follows:-
Chief Crown Solicitor for Ireland
Chief State Solicitor’s Department and all local State solicitors
Treasury Solicitor for Ireland
Parliamentary Draftsman
Charities
Estates of illegitimate deceased persons.
I am not satisfied that the vesting in the Attorney General of the administration and control of the Chief State Solicitor’s Department by section 6(1) of the 1924 Act has the effect of expanding the definition contained in section 2 of the 1957 Act. The definition is clear and concise. The fact that the Attorney General has conferred upon him administrative powers in relation to the offices mentioned in the ninth schedule does not, I am satisfied, justify an extension of the meaning of State authority in the 1957 Act to include the Chief State Solicitor or other officers mentioned in the ninth schedule to the 1924 Act.
A similar drafting approach to that in the 1957 Act was adopted in the State Property Act 1954 where State authority is defined even more narrowly:-
“State authority” means any authority being –
(a) a Minister of State or
(b) the Commissioners (i.e. the Commissioners of Public Works in Ireland).
This contrasts sharply with the approach with the legislature took in the Succession Act 1965 section 65 dealing with actions by or against the State in relation to the Administration of Estates:-
“Where administration of an estate is granted for the use or benefit of the State (whether to the Chief State Solicitor, the solicitor for the Attorney General or any other person)…”
In defining State authority in the 1957 Act there are no general words, “such as any other person”. Had it been the legislative intention that Attorney General be broadly interpreted I would expect in the 1957 Act an approach similar to that adopted in the Succession Act 1965.
Historically, where the Crown by reason of the failure of all next-of-kin became entitled to the estate of a deceased, the practice was for representation to be raised by a nominee of the Crown, normally the Treasury Solicitor. To facilitate this practice, by the Treasury Solicitor Act 1876, the Treasury Solicitor was constituted a corporation sole. The Act continues to apply in Ireland. The wording of the consent of the Attorney General and of the Letters of Administration Intestate issued in this case reflect that procedure – the grant is made to the Chief State Solicitor as nominee for and on behalf of the State. It is quite clear that the person entitled to bring or defend proceedings on behalf of the estate is the Chief State Solicitor to whom representation has been granted. This will remain the position until an assent is executed to a Minister of State pursuant to the provisions of the State Property Act 1954. The Minister of State being a State authority could then maintain proceedings. As the Chief State Solicitor can be called upon at any time to execute an assent in favour of a State authority (normally the Minister for Finance) it does not appear to be necessary to construe Attorney General widely to enable the State’s interest to be protected where representation issues on behalf of the State to the Chief State Solicitor. For this reason also I would not extend the definition of State authority.
I am satisfied that the Chief State Solicitor is not a State authority within section 2 of the Statute of Limitations 1957.
(b) Is the relevant limitation period that provided for in section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?
As the plaintiff is not a State authority within the meaning of the Act of 1957, section 13(1)(a) of the Act does not apply. The relevant limitation period is that in section 13(2)(a).
(c) Is the answer (b) affected by section 65 of the Succession Act 1965?
As section 13(2)(a) is the relevant provision of the Statute of Limitations this question is moot: however, I propose dealing with the same briefly. The defendant’s submission is that, in the event that section 13(1)(a) applies, then the Succession Act 1965 section 65(1) has the effect of applying the ordinary period of limitation which would apply had the administrator been a person beneficially entitled to a share in the estate, that is twelve years. Section 65(1) applies to this action: it provides that such action shall be subject to“the same rules of law and equity in all respects as if the grant had been made to the administrator as a person beneficially entitled to a share in the estate.” Had it been the legislature’s intention in enacting section 65(1) to apply not just rules of law and equity but enactments it would have done so in express terms. Thus the Succession Act 1965 in section 12(1) commences as follows:-
“All enactments (including this Act) and rules of law…”
The Succession Act itself distinguishes between rules of law and enactments. I am satisfied that it is not the effect of section 65(1) to apply statutory limitation periods.
The legislative history of section 65 is relevant. The Intestates Estate Act 1884 section 2 applied where administration was granted to a nominee of the Crown. The effect of the section was to apply the ordinary rules of limitation to any action coming within the section whether by or against the nominee of the Crown. Likewise section 3, in relation to actions by or against the Crown coming within that section, applied the ordinary rules of limitation. Section 3 related to informations and other proceedings and petitions of right claiming in an estate and is not relevant to the present case. The result was that thenceforth the rules of limitation could be relied upon by or against the Crown. See In re Mason [1929] 1 Ch.1, In Re Blake [1932] 1 Ch. 54. In the United Kingdom prior to the enactment of the Irish Statute of Limitations 1957 there were two statutory amendments to the 1884 Act sections 2 and 3. The Administration of Estates Act 1925 section 30 repealed sections 2 and 3 and re-enacted the same in section 30(1) and (2) extending them to real property. The Limitation Act 1939 amended section 30(2) (corresponding with section 3 of the 1884) by deleting the words “within the same time and” : thus at the enactment of the Succession Act 1965 the position in the United Kingdom was that in actions coming within section 30(1) of the 1925 Act (corresponding with section 2 of the 1884 Act) the same limitation period applied to an action by or against a Crown nominee as if the administrator was a next-of-kin. Section 30(2) of the 1925 Act no longer provided for a limitation period. The Succession Act 1965 repealed sections 2 and 3 of the 1884 Act and in substance re-enacted the same in section 65 (1) and (2) but without in any way prescribing in express terms in either subsection for a limitation period. Having regard to the legislative history I am satisfied that it was the intention of the legislature in enacting section 65 of the Succession Act 1965 to repeal and re-enact in an amended form sections 2 and 3 of the 1884 Act by no longer applying a limitation period: the effect of this is that the limitation periods provided for in the Statute of Limitations 1957 section 13(1) and (2) are unaffected by section 65 of the Succession Act 1965.
It follows from this that had the appropriate limitation period in this case been that prescribed by section 13(1)(a) of the Statute of Limitations that limitation period would be unaffected by the provisions of section 65(1) of the Succession Act 1965. However as the appropriate limitation period is that prescribed by section 13(2)(a) of the 1957 Act section 65(1) has no application. Section 65(2) does not provide for a limitation period so that the relevant period where that section applies is that provided for by section 13(2)(a), twelve years.
Conclusion
I would answer the questions of law for determination raised by the Case Stated as follows:-
(a) Is the plaintiff a State authority for the purposes of the Statute of Limitations 1957?
Answer: No.
(b) Having regard to sections 23 and 24 of the Statute of Limitations 1957 is the relevant limitation period in this case prescribed by section 13(1) of the Statute of Limitations 1957 or by section 13(2) thereof?
Answer: the relevant limitation period in this case is prescribed by section 13(2) of the Statute of Limitations 1957.
(c) Is the answer (b) affected by section 65 of the Succession Act 1965?
Answer: No.
Gunning v Sherry
[2012] IEHC 8,
JUDGMENT of Mr. Justice Hogan delivered on the 28th February, 2012
1. The defendant in these proceedings is a solicitor who is the legal personal representative of James Gunning, deceased, late of Chrysanthemum Cottage, Blacklion, Greystones, Co. Wicklow. The late Mr. Gunning was the father of the plaintiff, Ms. Eileen Gunning. Mr.Sherry was appointed the personal representative of Mr. Gunning’s estate by order of this Court dated 31st July, 2003. The previous grant of probate dated 3rd September, 1985, was revoked by court order on the same day.
2. Mr. Sherry now moves the court for an order striking out these proceedings as an abuse of process and as an attempt to re-litigate matters which are now res judicata. Mr. Sherry further entreats the Court to make an Isaac Wunder order, so that Ms. Gunning would be declared a vexatious litigant who would need the prior leave of this Court before she could issue any fresh proceedings.
3. The late Mr. Gunning died in 1984 and by his last will and testament dated 25th June, 1982, he devised one half of his estate to his wife, Sarah Gunning. The remainder of the estate was to be divided between his two daughters, Mary and Eileen. The latter was appointed executrix of the estate on 3rd September, 1985. Chrysanthemum Cottage represented the estate’s principal asset. It was an old cottage situate on about one third of an acre which, according to the valuation evidence tendered in the Circuit Court in November, 2008, was worth about €800,000 (and possibly even more) at the height of the property boom.
4. Given that the role of the mother and her two sisters form a central part of this narrative, to avoid confusion I propose henceforth to describe them as Sarah, Eileen and Mary. Inasmuch as I do this, no discourtesy to either Ms. Eileen Gunning or Ms. Mary Gunning or the late Ms. Sarah Gunning is intended.
5. The property appears to have been occupied by the Gunning family for quite some time, perhaps upwards of 100 years. Yet the title to the property has proved to be troublesome. It would appear from Land Registry dealings in the late 1990s concerning an application or first registration exhibited in these proceedings that James Gunning’s father, Patrick, took a lease of the property from Isabel Jane Orpin and Florinda Kingdon Ward on 9th January, 1935, at a rent of £5 per annum, which lease expired on 15th November, 1985. Patrick Gunning left the property to his wife Mary, with remainder to his son, James Gunning. By the time of his death, James was in exclusive possession under the terms of the lease, as Mary (i.e., the grandmother of Eileen and Mary) died in December, 1957. The terms of the lease would suggest that the Orpin family are (or were) entitled to the fee simple remainder. As I will later note, Eileen claims to have purchased the fee simple reversion from the successors in title of the lessors, but insofar as she did so, it was during the currency of her executorship, so that she held that interest on trust for the benefit of the estate of her late father.
6. To complete the picture, it should be noted that an extension to the cottage consisting of a bedroom and a bathroom was built by Eileen at some stage during the course of the 1990s following receipt of a grant from the (then) Eastern Health Board. I also observe that Mr. Sherry gave evidence to the Circuit Court in November 2008 whereby he expressed the opinion that the Orpin estate were entitled to the fee simple remainder.
7. What is clear is that the plaintiff’s parents, James Gunning and Sarah Gunning, moved into the property in about 1948 and that Mr James Gunning resided there until his death in 1984. After that, Sarah Gunning remained in occupation until 1999 and, indeed, she had lived on her own in the cottage until about from the date of her husband’s death from 1984 to 1990. During this period Eileen had moved to Saudi Arabia to work as a nurse and got married in Cyprus in April, 1986. Eileen returned to Ireland in December, 1987 and her husband joined her later. Eileen and her husband lived in Wexford until January 1991, when the marriage broke up. At that point, Eileen and her young daughter, Fatima, moved back to the cottage with her mother’s permission.
8. There would appear to have been some acrimony between Eileen on the one hand and Sarah and Mary on the other. At all events, Sarah moved out of the cottage in 1999 and went to live with Mary in the latter’s house in Dublin. These developments put in train a series of events which has led to bitter and acrimonious litigation which it is now necessary to chronicle.
The first set of Circuit Court proceedings
9. The first set of proceedings was an ejectment civil bill on the title in the Circuit Court bearing record number 154/01 brought by Sarah Gunning against Eileen Gunning whereby the former sought possession as against the latter. These proceedings were commenced on 5th March 2001. In her endorsement of claim, Sarah alleged that she remained in sole and exclusive occupation of the property from her husband’s death in 1984. She alleged that in 1990 she invited Eileen and her daughter, Fatima, to move into the cottage. She further alleged that Eileen and Fatima lived in the cottage pursuant to that licence and that the licence was determined by letter dated 15th December, 2000. It was then pleaded that Sarah was entitled to possession by virtue of the determination of that licence. Eileen filed a defence which traversed all the particulars of that claim.
10. The proceedings were heard by His Honour Judge O’Hagan in July, 2002. In his judgment he determined that Sarah was not in adverse possession, but he also ruled that Eileen had taken no steps to administer the estate in her capacity of executor. He further held that Eileen resided in the cottage “as trustee for the rest of the family and she had not acquired a title to the said property”. It is clear from this judgment that Judge O’Hagan did not consider that time ran in favour of Eileen so far as the Statute of Limitations 1957 given her status as executorix and the fiduciary duty which she owed in that capacity to the other beneficiaries.
11. The Court order recited that Sarah had not acquired title by adverse possession and dismissed the claim.
The first set of High Court proceedings
12. In the next set of proceedings Sarah sought an order pursuant to s. 26(2) of the Succession Act 1965 (“the Act of 1965”) removing Eileen as executrix of the estate of her late father. Smyth J. found that Eileen had never served Sarah with the requisite notice under s. 56(1) of the Act of 1965 whereby the former would have been entitled to appropriate the family home in satisfaction of her share in the estate as surviving spouse. As this had never been done, time had not run as against Sarah. Smyth J. also found that Eileen had sought during her executorship to have herself registered as the true owner of the property. Her intention was “to have herself registered as owner of the premises is in complete conflict with her role as executrix.” Smyth J. continued:-
“…it is a very necessary and serious step to take to remove the defendant from her role [as executrix] but I am satisfied that it must be done. It is the only way in which this matter can be dealt with properly and impartially.”
13. Eileen was accordingly removed from her role as executrix. She appealed that decision to the Supreme Court, but it appears that she subsequently withdrew the appeal in June 2004. The death of Sarah Gunning and its implications
14. Letters of administration duly issued to Mr. Sherry in April, 2006. In the meantime Sarah had unfortunately died in April, 2005. She left one half of her estate to Mary and one half to Eileen’s daughter, Fatima. Since Sarah’s estate was entitled to 50% of the estate of her late husband, the practical effect of that is that, subject to payment of legal costs out of the estate of James Gunning (which, unfortunately, are likely to be considerable) and other expenses associated with the administration of the estate, Mary is now entitled to a 50% share, Eileen to a 25% share and Fatima to a 25% share of the cottage.
15. No steps have ever been taken to challenge the validity of the wills of either James or Sarah. Nor have proceedings ever been brought by either daughter pursuant to s. 117 of Act of 1965 seeking to vary the provision made for either child under the will or either James or Sarah. In these circumstances, I am bound to accept the duly probated wills as absolutely binding and I must further ensure that the wills are administered in the manner provided for by law.
The second set of Circuit Court proceedings
16. In the second set of proceedings Mr. Sherry sought possession of the cottage from Eileen. In his ruling in November 2008 His Honour Judge White (as he then was) granted possession of the property to Mr. Sherry in his capacity as legal personal representative. While Eileen claimed that she had acquired the reversionary fee simple in 2001 from Ms. Pleione Tooley (who is, it appears, the successor in title to the interests of Ms. Orpin and Ms. Ward, the original lessees of the property), Judge White, following the decision of Smyth J. in the July 2003 decision, held that inasmuch as she had acquired that reversionary interest while acting as executrix, she held the fee simple reversion on trust for the entire beneficiaries. He further ordered Ms. Eileen Gunning to hand over the title deeds, including the deed of consent from 2001 which, she claimed, had vested in her the fee simple reversion.
17. Ms. Gunning appealed the order for possession, but the order of the Circuit Court was affirmed by Murphy J. in January 1999. By virtue of the provisions of s. 39 of the Courts of Justice Act 1936 (as re-enacted and applied to the courts operating under Article 34 of the Constitution by s. 48 of the Courts (Supplemental Provisions) Act 1961), no appeal to the Supreme Court lies against that decision: see, e.g., Eamon Andrews Productions Ltd v. Gaiety Theatres Ltd. [1973] I.R. 295 at 304, per Henchy J. and P. v. P. [2001] IESC 76, [2002] 1 IR 219, per Murray J. As the Supreme Court made clear in P. v. P., absent fraud, that decision (as a decision of the High Court on appeal from the Circuit Court) is absolutely binding upon me and I would otherwise have no jurisdiction to re-open a res judicata, a matter that has been finally and conclusively adjudicated upon by law. This principle has been recently reaffirmed by the Supreme Court in the context of re-litigating matters already determined by court order, even if that order was made by consent: see Charalambous v. Nagle [2011] JESC 11, per Denham J.
The present proceedings
18. Ms. Eileen Gunning commenced the present proceedings on 8th November, 2010. Some flavour of the nature of the case can be gleaned from the opening three paragraphs of the general endorsement of claim:-
“1. Abuse of privilege and power to steal and dispossess me, Eileen Gunning, of Family Home at Blacklion, Greystones, Co. Wicklow.
2. Colluding with others to cover up the facts to steal my home and property on false and fraudulent documents.
3. Colluding with others to destroy, deface and conceal the fact that Home and Property was very valuable in a sought after area of Greystones, Co. Wicklow.”
19. The defendant issued the present motion seeking to strike out the proceedings as an abuse of process on 21st February, 2011. That motion was first heard by me in May, 2011. In the course of that hearing I explained to Ms. Gunning that I was bound by the earlier decision of Murphy J. affirming the order of Judge White and, accordingly, that I would have to strike out the present proceedings as an abuse of process unless Ms. Gunning could establish that the earlier High Court order had been procured by fraud. I originally fixed the hearing date for 27th June, 2001. On that date I adjourned the matter and fixed the hearing date for the end of July, 2011.
20. At this point Ms. Gunning conceived the notion that I was biased against her and that I should recuse myself. She issued an ex parte docket on 23rd July, 2011, grounded on an affidavit where she claimed that I had shown “a clear and unrelenting bias towards me Eileen Gunning in the company of many witnesses/victims of the legal profession from all over Ireland.” I again adjourned the defendant’s strike out application to enable her to apply to the President of the High Court to have me recused. Keams P. nominated Cross J. to hear that application and in a ruling delivered in October 2011, the latter rejected Ms. Gunning’s contentions having read the transcripts of the hearings to date.
21. At the hearing of this matter on 7th February, 2012, Ms. Gunning again asked me to recuse myself on the ground of bias. I refused, taking the view that my competency to sit had already been independently adjudicated upon by Cross J. and there had been no appeal against that decision.
22. When this application was refused, both Ms. Gunning and Mr. Gill made submissions to me of highly generalised nature. I pointed out to Ms. Gunning that she was entitled to lead evidence of fraud and if, she wished to do so, this was now her opportunity. This she declined to do, with Mr. Gill saying that she needed more time for this purpose. They applied for a further two month adjournment. I ultimately refused to accede to this request, as, by reason of multiple adjournments, Ms. Gunning had been on notice for the best part of eight months of the nature of the evidence that would be required.
23. In the absence of any evidence that the earlier decisions were wrong m some way – much less evidence of fraud – it follows that the earlier decision of this Court affirming the Circuit Court decision must stand. Nevertheless, it may be useful to inquire what possible grounds of fraud might conceivably exist or have existed.
24. Ms. Gunning maintains that she is the full owner of Chrysanthemum Cottage and that the prior court orders which authorised Mr. Sherry as the legal personal representative of the estate of her late father to distribute the assets of the estate were obtained by fraud. However, given that neither the will of her father or, indeed, that of her mother was ever challenged, she can claim to be that full owner only either by reason of having purchased the fee simple reversion to the property or by having acquired a possessory title under by virtue of the Statute of Limitations. We may now consider these two possibilities. Purchase of the fee simple reversion to the property
25. As we have already noted, in the second set of Circuit Court proceedings, Ms. Gunning claims to have purchased the fee simple reversion from Ms. Tooley in 2001. Even though no formal title documents were put before this Court, let it be assumed in Ms. Gunning’s favour that she purchased this reversionary interest. If this is correct, then she purchased the fee simple reversion for her own private benefit while still executrix of her father’s estate.
26. In this situation, however, it has been the law for the best part of 130 years that in such circumstances the purchaser qua fiduciary holds the fee simple reversion in trust for all the beneficiaries of the estate: see Gabbett v. Lawder (1881) 11 L.R. Ir. 295. In that case the administrator of an intestate estate held certain lands under a lease as trustee. The fee simple reversion was offered to the administrator of the estate, but he declined to purchase it at the price named. The reversion was later sold at a public auction for a lower sum to the administrator who bought it for himself. Chatterton V.C. held that in these circumstances the administrator became a constructive trustee of the reversion for the persons beneficially entitled to the personal estate of the deceased, although he was entitled to the costs incurred by him in purchasing the reversion.
27. In her treatise, Equity and the Law of Trusts in Ireland (Dublin, 2011) (5th Ed.) Professor Delany comments thus (at 225):-
“…where a fiduciary purchases the reversion of a lease…it is probable that a trust will only arise in the circumstances outlined by Chatterton VC in Gabbett v. Lawder or where the fiduciary has clearly taken advantage of his position as lessee to obtain this benefit. However, having regard to the tenor of the authorities in this area, the onus will undoubtedly lie on the fiduciary to establish that he has not acted improperly, particularly where he occupies the position of trustee.”
28. If, therefore, Ms. Gunning did indeed purchase the fee simple reversion in her own name in 2001, she did so at a time while she was still the executrix of her father’s estate. In these circumstances, she plainly held it on trust for the benefit of all the beneficiaries. To come within any possible exceptions to Gabbell v. Lawder (assuming for the moment that there are such), it would have been necessary at an absolute bare minimum for her to show that the other beneficiaries had full knowledge of her actions and that they had freely and fully consented to such a state of affairs.
29. There is no evidence whatever in any of the documentation before me which suggests that Eileen ever consulted with Sarah or Mary in relation to this matter or that the latter gave their full consent to her purchasing that fee simple remainder for her own personal benefit. Moreover, everything suggests the contrary. After all, Smyth J. removed Eileen as executrix, essentially because he found that she was endeavouring to go behind the backs of the other beneficiaries by attempting to liaise with the Orpin estate by purchasing the freehold reversion for her own benefit or, alternatively, by having herself registered as full owner by means of a possessory title with the Land Registry.
30. In sum, therefore, even if Eileen managed to buy out the fee simple reversion in the manner that she claimed, this does not give her any superior title, because, as a matter of law, she holds that reversionary interest on trust for the beneficiaries of her father’s estate given that this was acquired at a time when she was executrix. This is not evidence of fraud, but it is rather the application of a rule of law designed in itself to prevent fraud.
Possessory title
31. The other possibility is that Eileen has set up a possessory title as against the estate of both her late father and mother and the interest of her sister Mary. At the hearing before me, Ms. Gunning contended that the applicable limitation period was six years. She was, however, unwilling to answer my query as to when time might have run in her favour and she offered no evidence on this point. In the interests of fairness, I will nonetheless endeavour to examine this point.
32. While the normal limitation period in the case of immoveable property is twelve years, the limitation period in the case of claims as against the estates of deceased persons is six years: see s. 45(1) of the Statute of Limitations 1957 (as inserted by s. 126 of the Succession Act 1965). Time only runs, however, from the date “when the right to receive the share or interest occurred.” However, as Smyth J. found in 2003, time did not run from that point because the requisite statutory notices prescribed by s. 56(1) of the Act of 1965 had not been served on the other beneficiaries and because Eileen has taken no steps to administer the estate.
33. More fundamentally, however, the special six year limitation period applies only to claims against the estate of the deceased. In the case of claims by the personal representative on behalf of the estate the ordinary limitation period of 12 years prescribed by s. 13 of the Act of 1957 applies: see the decision of McMahon J. in Drohan v. Drohan [1981] ILRM 473 and that of the Supreme Court in Gleeson v. Feehan [1993] 2 IR 11 3.As McMahon J. noted in Drohan, the special limitation period of six year has no application to a claim by personal representative to recover a deceased’s assets against a person holding adversely to the estate. The time period, therefore, in respect of any claim by any person holding adversely against the estate of James Gunning remains that of 12 years.
34. Quite independently of any question of whether time can run in favour of an executrix as against the beneficiaries of an estate, the earliest possible date on which time might have run in favour of Eileen was 1999 when her mother Sarah left the property. Time was, however, interrupted by virtue of the fact that Sarah purported to terminate Eileen’s licence to remain in the dwelling in December, 2000 and then commenced proceedings in March, 2001 whereby she sought an order for possession. Even if it be said that time commenced again when Judge O’Hagan dismissed that claim in July 2002, it was interrupted again no later than February, 2007 when Mr. Sherry commenced proceedings against Eileen as the legal personal representative of the estate of the late James Gunning. Such periods of adverse possession as might have run in favour of Eileen do not approach the requisite period of 12 years.
35. A claim based on adverse possession has, accordingly, not been made out and even making every possible factual assumption in Ms. Gunning’s favour, there would appear to be no basis on which it could be made out.
Whether the Court should make an Isaac Wunder order in respect of Ms. Gunning
36. There remains the question of whether the court should make an Isaac Wunder order in respect of Ms. Gunning. If such an order were to be made, it would have the effect that she would be precluded from commencing any fresh proceedings in this Court without the prior leave of the President of the High Court or any judge nominated by him for this purpose. The inherent jurisdiction of this Court to make such an order is well established: see, e.g., Riordan v. Ireland (No.4) [2001] 3 IR 365, Burke v. Judge Fulham [2010] IEIIC 448 and Moore, “Isaac Wunder Orders” (2001) Judicial Studies Institute Journal 137.As Irvine J. explained in Burke, the whole purpose of the Isaac Wunder jurisdiction is to regulate the constitutional right of access to the courts, albeit in a manner which is proportionate and strictly necessary to protect the proper administration of justice and the rights of third parties who might otherwise be oppressed by abusive litigation.
37. This jurisdiction was also summed up by Keane C.J. in Riordan (No.4):-
“It is, however, the case that there is vested in this court, as there is in the High Court, an inherent jurisdiction to restrain the institution of proceedings by named persons in order to ensure that the process of the court is not abused by repeated attempts to reopen litigation or to pursue litigation which is plainly grow1dless and vexatious. The court is bound to uphold the rights of other citizens, including their right to be protected from unnecessary harassment and expense, rights which are enjoyed by the holders of public office as well as by private citizens. This court would be failing in its duty, as would the High Court, if it allowed its processes to be repeatedly invoked in order to reopen issues already determined or to pursue groundless and vexatious litigation….”
38. While there is no doubt but that this power should be exercised sparingly, I have come to the conclusion that this is an appropriate case in which to exercise this jurisdiction. This is now the fourth case in which aspects of the ownership of the cottage has been the subject of litigation. I was informed during the hearing that Ms. Gunning had issued a further set of proceedings which apparently concern these matters, but which proceedings have yet to be served. The present proceedings were in themselves abusive in that they represented an attempt to re-open matters conclusively determined by this Court in January 2009. Not a shred of evidence was adduced by Ms. Gunning in support of her claim that the earlier orders were obtained by fraud, despite numerous opportunities having been afforded to her to do so. The costs of this exercise are likely to be borne, either directly or indirectly, by the estate of the late James Gunning, thus reducing the sums avail able for distribution to the beneficiaries. The effect of this litigation has been further to frustrate the orderly distribution of the estate of the late Mr. Gunning who, it will be recalled, died some twenty-eight years ago, but whose estate still remains to be distributed.
39. In this regard it may be noted that in Charalambous the Supreme Court strongly hinted that repeated attempts to re-open matters which are res judicata merited the making of an Isaac Wunder order. As Denham J. put it:-
“This case, based on a consent order, together with others brought by the appellant, has been in the courts for years. The respondent has been negatively affected by these years of litigation by the appellant. I would ask the parties to address the issue as to whether an Isaac Wunder order is appropriate in all the circumstances.
40. While it is true that the plaintiff has issued only one (or perhaps two) sets of proceedings in her own name, the fact remains that the case of Chrysanthemum Cottage has likewise been in the courts for years. The very fact that these proceedings were commenced without a willingness to support the claim of fraud is itself evidence of abuse. A considerable amount of judicial time and resources have been expended in considering the rights of the parties to this dispute. The other beneficiaries to the estate have been adversely affected by this on-going litigation. Further litigation can only add to the misery which this tragic dispute over home ownership has caused.
41. I will accordingly make an Isaac Wunder order in respect of Ms. Eileen Gunning to the effect that she is precluded from commencing any further new proceedings which directly or indirectly concern Chrysanthemum Cottage without prior leave of the President of the High Court or some other judge nominated by him. I will further direct that such leave is to be sought by an application in writing addressed to the Chief Registrar of the High Court. For the avoidance of doubt, I should make clear that this order only applies to new proceedings concerning the Cottage, including the possession and ownership of the Cottage and the administration of the estates of her late parents. Specifically, it does not apply to any existing proceedings and nor does it apply to any appeal to the Supreme Court against my decision in these proceedings which Ms. Gunning may wish to take. In addition, the order does not affect any other proceedings (not involving the Cottage or the administration of the estates of her late parents) which Ms. Gunning may wish to take,
Conclusions
42. There is no doubt but that the present state of affairs is a most unfortunate one. At a human level one would have to feel some sympathy for Ms. Gunning, since the effect of the court order is that the house in which she grew up and which she has made her home again since early 1991 is to be sold. Ideally, herself and her sister would have reached a modus vivendi whereby the house would not be sold. It is clear from the correspondence put before me that this was under discussion in June 2010, but this did not prove possible.
43. But sympathy alone cannot cloud legal rights and interests. Mary is entitled by law to seek to realise her 25% share of her father’s estate and that is presently the task of the defendant as the legal personal representative of the estate of James Gunning. This Court, sitting in its appellate capacity, has already determined this matter in January, 2009 in a manner which is final and conclusive. Absent fraud, that decision is absolutely binding on me.
44. There is, moreover, no fraud. As I have repeatedly pointed out, Ms. Gunning was given numerous opportunities by way of adjournment to enable her to assemble evidence to show that there was fraud. In the event, she did not call a single witness and elected to depart from the court along with Mr. Gill before the hearing had ended. Nor, indeed, is there any evidence which I can discern to show that the earlier decisions were wrong, much less tainted by fraud.
45. Regrettable and tragic as this general state of affairs is, the ultimate result is not in doubt. Since these proceedings involve an attempt tore-litigate matters which have been already judicially determined, the proceedings must accordingly be struck out as an abuse of process.
APPROVED: Hogan, J
Dooley v Flaherty
[2014] IEHC 528
JUDGMENT of Mr. Justice Gerard Hogan delivered on the 18th November 2014
Part I – Introduction
1. In these proceedings the plaintiffs seek a declaration that they are entitled to vacant possession of the property known as No. 25 Henry Street, Galway. The plaintiffs agreed to purchase the property at auction in May 2012 having been led to believe by the title description offered prior to the auction that the property was vacant, subject only to a life tenancy at a peppercorn rent in favour of one Paddy Flaherty. It appears that Mr. Paddy Flaherty died some time in or about December 1995. At that point his brother, Michael Flaherty (senior) took over the tenancy. Mr. Michael Flaherty (senior) died in June 1998 and his son (and present defendant), Michael, took over the tenancy in turn.
2. While the plaintiffs’ paper title to the property is not now disputed, they are nonetheless met with the defence of adverse possession on the part of the defendant, Michael Flaherty.
3. The case, in essence, turns on the defendant’s claim that he had twelve years’ uninterrupted possession of the property from September 1998 which he says he occupied without ever paying rent to the plaintiffs’ immediate predecessor in title, Paul Fitzgerald, from that point onwards.
4. Before considering the legal questions, it is first necessary to summarise the evidence.
Part II – The Evidence
5. The plaintiffs called two witness, Paul Fitzgerald and Orla Cullinan, while Michael Flaherty was the sole witness called by the defence. The following is a short summary of the evidence they gave relevant to the issue of adverse possession.
Paul Fitzgerald
6. Paul Fitzgerald gave evidence that he and his family were property developers who had purchased the property from the previous owners in 1990. He said that he knew Mr. Michael Flaherty (i.e., the present defendant) and that he had received rent from him in September 1998 after the death of his father who was also called Michael Flaherty
7. He said that he collected rent from him in 2004. He also said that he had called to the property in 2008 for this purpose but that he did not meet Mr. Flaherty.
8. Mr. Fitzgerald said that at some stage – he thought that it was around 2007 – his employees gained access to the property by going through a neighbour’s attic to repair an area which had been damaged by dampness. There is correspondence before the Court showing that the adjoining property owners had written to him on October 13th, 2008 to complain that “the state of the roof on your property has [had] consequences for our house.” Sometime thereafter he arranged with one of his own employees for the slates on the roof to be repaired.. He acknowledged that the house was not in good condition, but this was because the property was not a priority for him. He had also insured the property.
Orla Cullinan
9. Ms. Cullinan said that she was a solicitor of long standing. She said that Mr. Dooley (the first named plaintiff) and herself decided to purchase the property having learned that it was to be sold at an auction along with other distressed properties. As far as she was aware the property was uninhabited and, immediately following the auction and having paid a deposit, Ms. Cullinan, Mr. Dooley and a locksmith picked the lock and went into the house. She said as they were touring the property Mr. Michael Flaherty came “out of nowhere”. She said that Mr. Flaherty originally claimed that he was Patrick Flaherty before Mr. Dooley recognised him as Michael Flaherty because he had acted for him at an earlier stage. Mr. Flaherty said that he would leave the property for the sum of €5,000.
10. A few days later Mr. Dooley had the locks changed. He ultimately arranged to give Mr. Flaherty a copy of the key for the property on condition that he signed a receipt as caretaker for property.
11. Ejectment proceedings were commenced against the present defendant in the Circuit Court in Galway in July 2012. No appearance was entered to those proceedings. It appears that as the purchasers did not at that stage have full legal title to the property, doubts emerged regarding their standing to seek such relief. They proceedings were, at any rate, shortly thereafter discontinued.
12. The purchasers had, however, contracted to purchase subject only to a life tenancy in favour of a life tenant now deceased, they commenced vendor and purchaser proceedings seeking a declaration that they were entitled to vacant proceedings. That relief was refused by this Court, but the purchasers appealed to the Supreme Court. The matter was then resolved by the parties, with a small reduction in the price. The sale of the property ultimately closed in October 2013.
Michael Flaherty
13. Mr. Flaherty said is he now 59 years of age and he had spent all his life at 25 Henry Street. He had worked for Bus Éireann for the last 39 years. His family previously paid rent to a Ms. O’Beirne, a pharmacist, who was the previous owner of the property. Mr. Flaherty said his father had died in June 1998 and by this stage Mr. Fitzgerald had acquired the ownership of the property.
14. Mr. Flaherty acknowledged paying Mr. Fitzgerald the sum of IR£5 in September 1998 and said that this was the only rent he had ever paid. He denied ever seeking €5,000 payment in return for vacating the property. Mr. Fitzgerald also gave evidence of his modest and frugal life style and how he lived in the property.
15. A long time later in February 2010 he received two letters from Mr. Fitzgerald concerning the property. The first letter was dated 4th February 2010 and it asked him to call to sign the rent books in respect of the rents received from him. The second letter was also addressed to Mr. Flaherty and was dated 12th February 2010 and it was marked “Urgent – Re Rent Book.” It stated:
“Our accountants have informed me that I must get you to sign a rent book for the rents we have received from you. Please contact Caroline Gallagher of my office [at a particular telephone number] to arrange a suitable time that I can call to you and get this rent book signed.
We have made numerous attempts to contact you – we urgently need you to call the office so as to arrange a time to get the rent book signed.”
16. Mr. Flaherty was then contacted by Ms. Caroline Gallagher who asked him to sign a document acknowledging that rent was due, but he refused to do so.
17. Mr. Flaherty also said that if the roof was indeed repaired by Mr. Fitzgerald or by one of his employees, he was personally unaware of this.
18. Mr. Flaherty described the events of May 2012. He happened to be asleep on a bank holiday afternoon and was disturbed by the presence of voices. He denied ever asserting that he was Patrick Flaherty. He claimed that he challenged the right of Mr. Dooley and Ms. Cullinan to be present, although he acknowledged that he did not object to them touring the premises.
19. Mr. Flaherty stated that he was unaware that no “for sale” sign was placed on the property and he confirmed that he had no advance knowledge that any auction was to take place and . While this was disputed, I think it clear that this was so, as the photographs of the property in the auction brochure did not show any sign on the premises.
Part III: Whether the plaintiffs’ claim is statute-barred?
20. In view of these conflict of facts, I will endeavour to decide this case by reference to the established facts, avoiding, where possible, the necessity to resolve the factual disputes between the parties, not least where, in many cases – such as whether rent was demanded or paid in 2004 or at other points during the currency of the 12 year period – the available evidence simply pits one person’s word against another.
21. So far as the claim for adverse possession is concerned, there can be little doubt but that by paying rent in September 1998 to the plaintiff’s predecessor in title, Paul Fitzgerald, the defendant had thereby acknowledged the title of the true owner. Accordingly, therefore, time did not run against the plaintiffs (or their predecessors in title) before that point. It follows, therefore, that to establish adverse possession the defendant must show continuous uninterrupted possession for a period of not less than 12 years from that date. It follows that the earliest at which time might have expired for the purposes of an adverse possession claim was September 2010.
22. If, however, adverse possession has been established at the expiration of the 12 statutory period prescribed by s. 13(2) of the Statute of Limitations 1957, then the subsequent course of conduct on the part of the claimant is largely irrelevant, save that in certain unusual circumstances evidence in relation to such subsequent conduct may possibly negate the existence of any prior animus possessendi on the part of the claimant. It might be, for example, that the conduct of a claimant immediately after the expiry of any putative 12 year period would be inconsistent with the argument that he or she had always intended to possess the land adversely to the owner during that period. Given the facts of the present case, it is not, however, necessary to express any concluded view on this question.
23. The plaintiffs placed much store on the fact that when they called to the premises in May 2012 and introduced themselves as the new owners they say that defendant made no objection. Nor did he object to the fact that the locks were thereafter changed by the plaintiffs.
24. As it happens, I think that the evidence does not go quite as far in that direction as the plaintiffs have submitted. When the plaintiffs entered the property in May 2012, they disturbed Mr. Flaherty and he naturally challenged them as to their entitlement to be present on the property. But even if the plaintiffs are correct in submitting that the defendant raised no effective protest at their sudden entry into the property, this is irrelevant as a matter of law if the defendant by this point had already acquired title by adverse possession. It is clear that once title is extinguished in that manner then “no subsequent act of possession…would be sufficient to re-instate it” Dunne v. Iarnród Éireann [2007] IEHC 314, per Clarke J.
25. The condition of the premises is likewise largely irrelevant to these issues. There is no doubt but that for the entirety of the period in question (i.e., between 1998 and 2010) the property was in a total state of disrepair and virtual dereliction. It appears that the windows and external doors were decayed and decrepit. There was no internal flush toilet and the external toilet did not work properly. There was no hot water supply within the property. The state of the premises is, however, at most relevant to show that the squatter had no real intention of adversely acquiring possession on the basis that if he or she did, more care would have been taken of the property during the running of the limitation period.
26. If the decrepit state of the premises serves to create a presumption that there was no real animus possessendi on the part of the squatter, such a presumption is, at best, a slight one which can be disproved on the facts of a particular case. Such is the position here. It is clear that Mr. Flaherty is a man of extremely modest and frugal tastes. It is also clear from his evidence that he is content with his work and his own company and that he cares little for that which the modern world seems to regards as essential or necessary. One may surmise that Mr. Flaherty would be quite content to live in this accommodation, irrespective of whether he owned it or not. In the present case, therefore, the state of the property has no relevance to the question of whether Mr. Flaherty’s possession was adverse to the true owner.
27. Nor can I accept that this property is not capable of enjoyment. The plaintiffs submitted that, for the purposes of the law on adverse possession, the land must be capable of enjoyment and that as the property was not really suitable for human habitation, it did not meet this criterion. The fact is, however, that Mr. Flaherty did derive enjoyment from the property: it has been, after all, his home all his life.
28. In any event, I cannot help thinking but that the plaintiffs’ submission involves the use of the term “enjoyment” in a slightly different sense than that which appertains to land law in general and to the law of adverse possession in particular. Of course, the homeowner who enjoys a splendid view from his or her house in summer or whose family can huddle around a blazing fire in a well appointed sitting room on a cold winter’s evening can be said to be deriving “enjoyment” from the property. This, however, is not quite the sense in which the term is used in this legal context. “Enjoyment” in this sense refers to the use of and obtaining benefit from the property and not simply to the act of deriving pleasure or satisfaction from ownership.
29. If, moreover, the plaintiffs’ submission were correct, it would mean that the courts might be required into inquire into the subjective tastes and feelings of landowners for the purposes of assessing whether the law on adverse possession applied to that particular property, thus adding needless complexity to an area of the law which is already beset with its own difficulties. Just as importantly, this would also unfairly weaken the legal rights of landowners. The owner of an ugly office block in a desolate industrial estate is nonetheless entitled to have her legal entitlements safeguarded by the law, even if she actually detested the place and derived no personal pleasure or satisfaction from that ownership
30. The real question, therefore, remains that of whether Mr. Flaherty established uninterrupted possession for twelve years in a manner which is adverse to the true owner. At this juncture, the precise nature of the tenancy is hard to determine. It was certainly a parol tenancy, as there was no lease in writing. Viewing the evidence as a whole, the payment of rent by Mr. Flaherty in September 1998 was probably consistent with the existence of a weekly tenancy.
31. If that were so, then by virtue of s. 17(2) of the 1957 Act the tenancy must be deemed to be determined at the end of that week once Mr. Flaherty ceased to pay rent: This sub-section provides:
“(2) (a) A tenancy from year to year or other period, without a lease in writing, shall, for the purposes of this Act, be deemed to be determined at the expiration of the first year or other period.
(b) The right of action of a person entitled to land subject to a tenancy from year to year or other period, without a lease in writing, shall be deemed to have accrued at the date of the determination of the tenancy, unless any rent or other periodic payment has subsequently been received in respect of the tenancy, in which case the right of action shall be deemed to have accrued on the date of the last receipt of rent or other periodic payment.”
32. On this basis, therefore, having regard to the provisions of s. 17(2) time began to run in favour of Mr. Flaherty from September 1998 onwards. But was the running of time ever thereafter interrupted?
33. In this respect, the decision of Clarke J. in Dunne is most instructive. In that case the plaintiff had claimed title by adverse possession of a triangular section of land adjacent to Clondalkin railway station. There was no doubt but that the plaintiff was in continuous occupation over a long period, but for Clarke J. the issue was whether CIE as owner of the paper title to the lands could point to acts of possession which negatived any adverse possession by the claimant.
34. What is of particular importance is that Clarke J. approved earlier comments of Slade L.J. in Powell v. McFarlane (1979) 38 P & CR 452, 472 where the latter had stated that:
“…an owner or other person with the right to possession of land will readily be assumed to have the requisite intention to possess, unless the contrary is clearly proved. This, in my judgment, is why the slightest acts done by or on behalf of the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed.”
35. Clarke J. went on to add:
“It is, therefore, important to emphasise that minimal acts of possession by the owner of the paper title will be sufficient to establish that he was not, at least at the relevant time of those acts, dispossessed. The assessment of possession is not one in which the possession of the paper title owner and the person claiming adverse possession are judged on the same basis. An owner will be taken to continue in possession with even minimal acts. A dispossessor will need to establish possession akin to that which an owner making full but ordinary use of the property concerned, having regard to its characteristics, could be expected to make. It is not, therefore, a question of weighing up and balancing the extent of the possession of an owner and a person claiming adverse possession. Provided that there are any acts of possession by the owner, then adverse possession cannot run at the relevant time. This is of relevance because there are a number of actions taken by CIE which are said to amount to acts of possession. It will be necessary to assess whether those acts do amount to possession having regard to the low threshold identified in the authorities. If they do, however, those acts will prevent time running during the period at which they occurred.”
36. Having reviewed the evidence, Clarke J. was satisfied there were such acts of possession in that, first, at least a portion of the lands had been occupied during this period for the purposes of renovating Clondalkin station and, second, fences had been erected on the lands in response to complaints from neighbouring landowners:
“The first such question concerns work carried out in renovating Clondalkin Station, which continued for a period of approximately a year and a half in 1993 to 1995. It is clear on all of the evidence that the renovation and modernisation of the station involved taking back what was, admittedly, a small portion of the land in dispute and its incorporation onto the railway platform. The work also involved the building of new fences and the like. I am satisfied from the relevant maps and photographs that it must necessarily have been the case that, at that time, at least a portion of the lands which were part of the triangular area must have been occupied and used by CIE for the purposes of the station works. Mr. Dunne accepted in evidence that workers on behalf of CIE were in the field at that time and up to 1995.
Secondly there was evidence concerning complaints made by a neighbouring land owner, Mr. Kavanagh, who was concerned with the adequacy of the fencing between his lands and the disputed lands. At times those complaints were raised by solicitors acting on behalf of Mr. Kavanagh. As a result of one of those complaints made to CIE in 2001, it is common case that CIE sent out a contractor who repaired the fences between Mr. Kavanagh’s lands and the disputed lands in or around that time. Having regard to the very low threshold which, on the authorities, I am required to apply to acts of possession by the paper title owner, I have come to the view that both of the matters to which I have referred, amount to a sufficient act of possession on the part of CIE of the lands in question to negative adverse possession at the relevant times.
I am mindful, of course, that the acts concerned did not involve the entirety of the lands. The station works were at one end of the lands, the fencing to Mr. Kavanagh’s property on the other. However the lands were not divided in any way so that one could meaningfully state that a party was in possession of some but not all of them. Therefore, it seems to me that, though minimal, the acts of possession by CIE must be taken to relate to all of the lands at the relevant times. On that basis it seems to me clear that no adverse possession claim can be maintained in respect of any period subsequent to a time in or about 1993 for there is not a continuous twelve year period subsequent to that time during which it can be said that CIE were entirely out of possession.”
37. In the light of the test posited by Clarke J. in Dunne, it is clear that the owner did perform an act of possession at some stage after the complaints from the neighbours by thereafter effecting repairs to the roof and to the slates. While Mr. Fitzgerald suggested that this was done around 2007, I think it more likely that these repairs were effected at some stage shortly after the receipt of the letter of complaint from the adjoining landowners in October 2008, i.e., after that point but before the expiration of the 12 year limitation period in September 1998. There is no doubt at all but that this is a sufficient act of possession on the part of the owner such as would arrest the running of time, even if this also obviously fits into the category of a minimal act of possession in the manner envisaged in Dunne.
38. I accept that Mr. Flaherty was unware of these works, but I am also satisfied that such repair work was actually done. It is unnecessary to address the question as to whether the owner who claims an act of possession by entering his own lands by stealth could satisfy the Dunne test: where, for instance, certain farmland has been occupied adversely by a squatter, would it suffice to arrest the running of time if, for example, the owner could show that he had once walked the lands at night during the running of the 12 year period? In any event, in the present case, the repair work on the roof was done openly for the world at large to see and observe and this, in my view, constitutes a sufficient act of possession.
39. I also accept the evidence of Mr. Fitzgerald that he insured the property for all of this period. This also amounts to an act of possession which would satisfy the Dunne test.
40. In the light of these findings, it is unnecessary to dwell on the question of the February 2010 correspondence. It must be recalled that if, indeed, no rent had been paid since September 1998, then the weekly tenancy would have been determined by operation of law, namely, s. 17(2) of the 1957 Act, so that time would have been running in Mr. Flaherty’s favour from the point he ceased paying rent. In those circumstances, it is doubtful if the correspondence from February 2010 seeking an acknowledgment of rent paid can be regarded as amounting to a positive act of possession. If, on the other hand, there had been a written lease then the situation might well have been otherwise, because in those circumstances the lease would not have been terminated by operation of law simply by reason of non-payment of rent, as s. 17(2) of the 1957 Act does not apply where there is a lease in writing. It is in that latter type of case that the February 2010 correspondence might have been regarded as amounting to an implied assertion that the relationship of landlord and tenant still existed between the parties.
41. This, I think, is the true explanation of the judgment of Henchy J. in Sauerzweig v. Feeney [1986] I.R. 227 on which the plaintiffs so heavily relied. In that case the tenant held residential property by virtue of a lease in writing. For various reasons no rent was paid after 1950 and from 1960 the tenant paid the ground rent and the rates. The landlord later demanded rent in 1977, 1978 and 1981, but the defendant did not reply to this correspondence. The landlord then commenced ejectment proceedings by serving a notice to quit, but the tenant claimed title by adverse possession. The Supreme Court rejected this latter claim, with Henchy J. observing ([1986] I.R. 224, 227):
“The landlord showed that she had not determined or abandoned the tenancy when she made formal demands in writing for the payment of rent in August 1977, in August 1978 and again in February 1981. To none of those demands did the defendant reply that the tenancy had no application to him.
The only proper conclusion in those circumstances is that the tenancy was not determined until the service of the notice to quit in the present proceedings What the plaintiff, as landlord, has lost is not her title to the property but her right to recover rent after the expiration of six years from the date when the arrears became due (see s. 28n of the Act of 1957).”
42. Viewed thus, Sauerzweig is really a case about whether the tenancy had been determined. Henchy J. found that it had not been determined, in part, at least, because as he noted, this type of case (i.e., where there was a written lease) was not governed by what he described as “the artificial determination of tenancy” rule provided for in s. 17(2) of the 1957 Act. As the tenancy in that case had not yet been determined, no time could run in the tenant’s favour by reason only of the non-payment of rent and the only action which was barred was the owner’s right to recover the rent.
43. This reasoning cannot apply to the present case given s. 17(2) of the 1957 Act does sharply distinguish between those cases where there is a lease in writing and those cases in which there is not so far as the running of time is concerned. As there was no lease in writing, time began to run as the weekly tenancy was artificially determined by s. 17(2) once Mr. Flaherty ceased to pay rent.
Part IV – Conclusions
44. While the present case undoubtedly presents certain unusual features, I think it clear that the case for adverse possession has not been made out. For the reasons just stated, I think that there were acts of possession on the part of the plaintiffs’ predecessor in title, Mr. Fitzgerald in the course of the period from September 1998 to September 2010, even if those acts of possession can also fairly be described as minimal.
45. I will now await further submissions from counsel as to what further orders (if any) would now be appropriate in the light of this judgment.
Ulster Investment Bank Ltd -v- Rockrohan Estate Ltd
[2015] IESC 17
Judgment of Mr Justice Charleton delivered on the 26th day of February 2015
1. At issue in this appeal is the application of the Statute of Limitations 1957, in circumstances where a mortgagor has remained in possession of lands for more than twelve years after the High Court has made a well charging order together with an order for sale. The lands in question comprise about 120 acres, and are entered in the Register of Freeholders for County Cork on folio 28285. As is usually the case on making such an order, no order for possession was made with the primary order. Central to that issue is the question of whether such occupation, after the making of an order for sale, is in fact adverse to the mortgagee. Estoppel by convention, based on the shared understanding of the parties, is claimed by the mortgagee bank to ensure that there has been neither an adverse occupation by the mortgagor nor an efflux of time to enable the creation of a title by adverse possession. The mortgagor of the lands in question is the defendant/appellant Rockrohan Estate Limited and the mortgagee is the plaintiff/respondent Ulster Investment Bank. In the High Court, the trial judge, Irvine J, decided that the Statute of Limitations had no applicability in the circumstances of this case; Ulster Investment Bank Limited v Rockrohan Estate Limited [2009] IEHC 4.
Background
2. The background to this case is fully described in the judgment of Irvine J. A feature of this background is the long-running dispute involving a company called Bula Limited, an enterprise proposing to mine for zinc and lead in County Meath. The obligation of Rockrohan to the bank in this case came about through a guarantee debenture dated 22nd September 1981 which was, on the face of it, an obligation limited to the recovery of €1 million, together with interest applicable under the primary contract of borrowing. On Bula defaulting on the loan in July 1982, a receiver was appointed over its assets. In July 1986, Rockrohan was called upon to meet its obligation under the debenture. The relevant rate of interest was specified, as was the degree to which other securities had realised cash against the obligation guaranteed. Bula Limited became involved in a series of actions against a number of parties. These proceedings are relevant as forming part of the origin of this case, but are not as to the amount charged on the land or as to the propriety of the realisation of the debenture, since no such defence was raised. Instead, the solution proposed by Rockrohan in the High Court in respect of the sum that was sought to be declared well charged on the land pursuant to the guarantee debenture was a plea, by way of affidavit filed back in 1989, that Rockrohan would be able to discharge its obligations upon the litigation concluding against Tara Mines Limited, together with other related litigation, including a claim against this bank and other banks and against the State. Sets of litigation had been started in 1986, which involved other parties meeting claims of breach of contract and tort related to the mining enterprise and the funding thereof. It was averred that it would be inequitable to allow the bank to proceed to execute against the lands “as such relief may be entirely unnecessary.” Among the reliefs sought in the litigation involving this bank were declarations that all consent judgments, all guarantees and all contracts were unenforceable. That remedy, should it have been granted, would have meant that this guarantee debenture was void. An adjournment was sought in this matter until the conclusion of the litigation. That was not granted. After hearing argument, Blayney J proceeded to make an order declaring “the principal moneys secured by the said Guarantee Debenture” together with the interest thereon “and the costs hereinafter awarded” well charged on the interest of Rockrohan in the lands. Then the sum involved was IR£1,267,149.02; but with growing interest on that amount if not paid within three months, and costs. The order of 16th February 1987 continued that should payment not be made by Rockrohan:
… the said lands and premises be sold at such time and place subject to such conditions of sale as shall be settled by the Court and the following Account and Inquiry are to be taken and made in the Examiner’s Office namely:-
No. 1. An Account of all incumbrances subsequent as well as prior to and contemporaneous with the Plaintiff’s demand
No. 2. An Inquiry as to the respective priorities of all such demands as shall be proved …
3. The Court did not grant the bank an order for possession, as had been sought. The reason for that would have been well known to all the parties, as counsel’s note of the judgment of Blayney J of the same date makes clear:
The Defendant is saying that there is a different method by which the Plaintiff Bank may be paid. The Defendant argues that if the Plaintiff waits until the other proceedings are determined then the Bank will be paid and there is an inference that the Bank will be paid more expeditiously in this way and the claim by the bank will be satisfied more fully. But the Bank is entitled to choose by which method it will realise money due to it. No real case is being made alleging any invalidity in the Debenture. The only case being made is that the bank in effect should wait and if it were to wait, it would be paid off by the moneys recovered in the other proceedings. That however is not a ground to resist the Order which the plaintiff is seeking. By virtue of the fact of the guarantee debenture, the Bank has a good charge over the lands for the amount which is currently due under the guarantee. Therefore the bank is entitled to the usual Order declaring these sums well charged on the lands in question. The bank also seeks an Order for possession. However, there does not appear to me to be any reason to make an order for possession. There is no evidence before the court such as would satisfy me that there is any necessity for such an Order. There is nothing to suggest that the Bank would be impeded in the sale of the land if the well charging order is made.
4. This ruling was appealed to this Court by notice dated 3rd of April 1987. The matter came on for hearing some time later. The principal affidavit grounding the appeal did not challenge the decision of the High Court either as to liability or as to the amount charged. Instead, it was contended that the order charging the debt on the land ought to have been postponed until the Bula litigation against Tara, against the State and against other banks and parties, had concluded. But for the wrongs therein complained of, it was averred, the relevant loans would have been repaid, and no question of enforcing the security would ever have arisen. In the result of the appeal, the initial stay granted by Blaney J in the High Court was extended over three months to the 2nd of October 1990.
5. The issues on this appeal were initiated by a motion seeking possession in favour of the bank for the purposes of sale, dated the 17th of July 2008. This was immediately countered by a motion dated 25th July of the same year from Rockrohan seeking a declaration that the bank has no interest in the lands or entitlement to enter into possession of, or to sell, same.
Facts
6. It was not until the 10th of June 2005 that the Bula Limited litigation against the various banks and other defendants including the State and Tara Mines concluded. On that date, an order restraining all further litigation without leave of the High Court was made. Litigation had failed first in the High Court and then on appeal to this Court in relation to the action against Tara Mines Limited and other parties.
7. The claims against banks, including the bank in this case, were dismissed in the High Court on the 1st of February 2002, and on appeal, by this Court in February 2003. Those behind the litigation then claimed to have fresh evidence that the High Court and the Supreme Court had been deceived by fraud and a new action based on deceit was commenced. That fresh case was only eventually dismissed in June of 2005.
8. When an order for sale is made in a mortgage suit, the sale takes place under the direction of the court; see Order 51 of the Rules of the Superior Courts. The process leading to a sale is commenced in the Examiner’s Office by the service of a Notice to Proceed in accordance with Order 55 R 11 of the RSC. In this case, the Notice to Proceed issued on the 12th of February 1999 and was duly served on Rockrohan. On the 26th of September 2006, the Assistant Examiner of the High Court set the conditions and date for the sale of the lands of Rockrohan, which were charged to the bank. As a matter of procedure, in the normal course of sale, no further application to court would ever have been needed. The conditions of sale would have been set by court conveyancing counsel. It would have been the mortgagor, Rockrohan, who would have sold the property under the supervision of the Examiner of the High Court, and that company, on the sale being completed, would have been bound to deliver up good title and peaceful possession to the purchaser. As a matter of practicality, it is not always necessary for mortgagors in possession to have an order against them requiring the vacation of the property for the purpose of sale. Most often, such an order is made in court because grounds are shown whereby vacant possession becomes a necessity, perhaps because of an apprehension of obstruction of, or of less than full cooperation in, the sale, or because repairs are needed to a premises that has deteriorated through waste.
9. A judicial review application was then commenced by Rockrohan against the Assistant Examiner and others which, after leave was granted, came on for hearing before McGovern J in the High Court. This judgment was issued on the 30th of March 2007; Rockrohan Estate Limited and Richard Wood v Thomas Kinirons and Ulster Investment Bank Limited, Ireland and the Attorney General [2007] IEHC 112. On behalf of Rockrohan, it was averred that the motion to enable the sale of the lands in February 1999 was a “colourable device in pursuance of a misconceived attempt to defeat the statute of limitations and keep alive a power of sale”. It was alleged that the guarantee to the bank was collateral, and that since the main debt had been discharged, there could be no amount due to the bank from Rockrohan. Ultimately, however, notwithstanding these pleas, the High Court was ultimately asked only to resolve the issue of whether the rule preventing counsel from appearing before the Examiner was in breach of fair procedures, and whether the Examiner had failed to apply Article 6 of the European Convention on Human Rights. That Article guarantees that in “the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. In the course of his judgment, McGovern J referenced the wide ranging allegations of fact exchanged between the parties and, in particular, expressed a view, which Irvine J rightly did not regard as binding, that Rockrohan were never in possession of the lands in a manner adverse to the bank. This comment was not surprising in light of the contention on affidavit by Rockrohan that since 1989 that company had been in unchallenged possession of the lands, and consequently, at that point, had the benefit of a title through adverse possession. At pages 5 to 6 of his unreported judgment, McGovern J, in refusing the relief sought, stated:
In the course of the hearing counsel for the applicants spent a great deal of time arguing that the first named notice party had failed to act with expedition in enforcing the order for sale and had in effect for many years done nothing about enforcing it and that it is now to be estopped from doing so. Counsel claimed, inter alia, that the applicants had acquired adverse possession of the lands against the first named notice party and that the lands could not therefore be sold. I reject this argument. Blayney J. did not give an order of possession to the first named notice party and at all times the first named applicant has been in possession of the lands since they have not yet been sold. The Applicants have not been in possession adverse to anyone else so the question of adverse possession does not arise. Furthermore I am satisfied that the arguments relating to the alleged delay on the part of the first named notice party are irrelevant to the issues which I have to decide in this judicial review application. They seem to be directed more towards showing that the lands in question should not be sold or that the order of Blayney J. should not be or cannot be enforced. Having heard the submissions of the parties and in particular the submissions of the first named notice party on this issue I am quite satisfied that the delay in achieving a sale of the lands in question is due to protracted litigation which has continued by one or other or both of the applicants up to this date in both the High Court and Supreme Court. These proceedings raise issues such as a declaration that the ‘Bula debt’ was discharged and unenforceable, a claim relying on the statute of limitations including the release of securities collateral to the guarantees given by the second named applicant. It is clear from the proceedings in the various actions which have continued through to the end of 2004 that the basis upon which the judgment of Blayney J. was given has been under attack by the second named applicant.
10. The way was then, apparently, clear for the sale of the lands charged, but, as indicated, the motion of the bank in that regard was countered by the contention that adverse possession had extinguished the rights of the bank over the land charged.
Adverse possession
11. Central to the question of the extinguishment of rights is whether, over the period from the order of the Supreme Court whereby the stay on the order of Blayney J expired, which was the 2nd of October 1990, Rockrohan could be regarded in law as being in adverse possession of the lands. The statutory basis for any such claim is to be found in section 13(2)(a) of the Statute of Limitations, which fixes a bar on recovery of land after twelve years has elapsed from “the date on which the right of action accrued to the person bringing it”; and in section 18(1), which provides that no “right of action to recover land shall be deemed to accrue unless the land is in the possession … of some person in whose favour the limitation period can run”; which requires, as section 18(2)(b) provides, that a “right of action” only accrues “unless and until adverse possession is taken of the land”; thereupon section 24 provides that “at the expiration of the period fixed” in the legislation “the title of that person to the land shall be extinguished.”
12. Not all possession of land or premises, otherwise than by its owner, is adverse. In some cases it has been held that the intention of the owner as to the future use of the land may result in what would otherwise be the ordinary and complete use and possession of land by a stranger to the title not being adverse; Leigh v Jack (1879) 5 Ex D 264, Wallis’s Cayton Bay Holiday Camp Ltd v Shell-Mex and BP Ltd [1975] 1 QB 94, Cork Corporation v Lynch [1995] ILRM 598. This line of authority was criticised by Brady and Kerr as being “arguably subversive of the policy reasons which have undergirded successive statutes of limitations”; Brady and Kerr – Limitation of Actions (2nd edition, Dublin, 1994) at page 101. It was not followed by Barron J in Seamus Durack Manufacturing Limited v Considine [1987] IR 677. Such a principle, those commentators point out, would also make apparently overt acts of dispossession as may found adverse possession depend upon the subjective intention of the owner of the title to land. Some parcels of land, however, may be such as to constitute waste land, or land which is not capable of use or enjoyment, save perhaps on rare occasions. An example of this would be land beside or under a bridge that the owner used only for periods of inspection of the structure; Dundalk UDC v Conway [1987] IEHC 3. Founding the concept of adverse possession is the principle that the party thereby claiming rights must not take or hold the land by force, by deception or with the permission of the owner of the legal title; or as lawyers of an earlier generation would have expressed it nec vi, nec clam, nec precario. O’Hanlon J explained the use which a possessor must make of land or premises, so that it was adverse to that of the owner, in Doyle v O’Neill (High Court, unreported, O’Hanlon J, 13 January 1995) at page 20 thus:
In order to defeat the title of the original landowner, I am of opinion that the adverse user must be of a definite and positive character and such as could leave no doubt in the mind of a landowner alerted to his rights that occupation adverse to his title was taking place. This is particularly the case when the parcel of land involved is for the time being worthless or valueless for the purposes of the original owner.
13. Mere occasional user of land is therefore insufficient. There must be a taking over and use of the land or premises in a way that is inconsistent with the title held by the owner. Particular regard must be had to the individual circumstances of possession. The matter was put thus by Lord O’Hagan in Lord Advocate v Lord Lovat (1880) 5 App Cas 273 at page 288:
As to possession, it must be considered in every case with reference to the peculiar circumstances. The acts, implying possession in one case, may be wholly inadequate to prove it in another. The character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interests – all these things, greatly varying as they must, under various conditions, are to be taken into account in determining the sufficiency of a possession.
14. In many subsequent cases, this analysis has been quoted with approval, most importantly by this Court in Bula Ltd v Crowley (No 3) [2003] 1 IR 396 at page 425 per Denham J. In addition, see Canny – Limitation of Actions (Dublin, 2010) at pages 67-70. The application of the test of adverse possession can be difficult; as in Murphy v Murphy [1980] IR 183, where a widow whose deceased spouse had left land divided by a road to her and their two sons, one of whom exercised rights over what was her portion as residuary legatee without her ever understanding her entitlement. At page 202 of the report on the appeal to this Court, Kenny J amplified the nature of possession which is adverse, specifically excluding possession by consent:
Before the year 1833 the common law had engrafted the doctrine of non-adverse possession on to the earlier Statute of Limitations so that the title of the true owner was not endangered until there was possession clearly inconsistent with recognition of his title, i.e., adverse possession, and so there had to be an ouster. This doctrine of non-adverse possession was abolished by the Real Property Limitation Act, 1833, in which the words “adverse possession” were not used (Lord Upjohn in Paradise Beach & Transportation Co. Ltd. v. Price-Robinson [[1968] AC 1072]). The use of the words “adverse possession” in the Act of 1957 does not revive the doctrine of non-adverse possession which existed before 1833. In s. 18 of the Act of 1957, adverse possession means possession of land which is inconsistent with the title of the true owner: This inconsistency necessarily involves an intention to exclude the true owner, and all other persons, from enjoyment of the estate or interest which is being acquired. Adverse possession requires that there should be a person in possession in whose favour time can run. Thus, it cannot run in favour of a licensee or a person in possession as servant or caretaker or a beneficiary under a trust: Hughes v Griffin [[1969] 1 W.L.R. 23.]
15. Possession by a mortgagor can be adverse to the interests of a mortgagee. That depends upon the circumstances, however. Where, for instance, repayment to a bank stops, and the bank takes no steps to enforce their security over decades, albeit that this is an unlikely scenario, possession in such circumstances may be adverse to the interests of the bank. In National Westminster Bank Plc v Ashe [2008] 1 WLR 710, a couple, by the name of Babai, mortgaged the house in which they lived to the plaintiff bank. Financial difficulties caused payments between 1990 and 1993 to be intermittent. In 1993, the husband was declared bankrupt. The bank acted only by issuing a formal demand and by engaging in correspondence. Thirteen years later, the trustee in bankruptcy of the husband, as legal holder of his entire property, successfully sought a declaration of adverse possession in the High Court, which was upheld in the Court of Appeal. The argument accepted was that a mortgagor in possession in such circumstances did not hold the premises with the permission of the bank. At paragraphs 86 and 87 of his speech, Mummery LJ stated:
In my judgment, however, the continued possession of the property by Mr & Mrs Babai after they had mortgaged it was referable to their property interest in it. This was not objected to by the bank. It must have been tacitly accepted by the bank in the context of the charge, but the bank’s right of action and its tolerance of their possession did not prevent them from being in ordinary possession of the property which satisfied the requirements of paragraph 8[of the limitations legislation]. The nature of this possession did not therefore prevent time running against the bank once its cause of action had accrued, or had accrued afresh by reason of a part payment.
In summary, the bank had a right of action. More than 12 years passed since it accrued afresh. Mr & Mrs Babai’s continued possession of the property with the apparent leave and licence of the bank did not prevent them from being persons against whom the bank’s right of action to recover the property arose on the granting of the legal charge, which right is treated as having accrued afresh when a payment in respect of it was made. Nor did it prevent Mr & Mrs Babai from being persons in whose favour time can run under the 1980 Act. According to the ruling in the Pye case [2003] 1 AC 419 their possession was adverse possession within paragraph 8.
16. The central nature of the relationship between the party ostensibly in possession and the holder of the legal title is illustrated by Bula Ltd v Crowley (No 3) [2003] 1 IR 396. In law, a receiver technically acts as agent for the mortgagor, in that case Bula Limited, and not for the mortgagee bank. The plaintiff company in that earlier case, which is part of the chain of litigation of which this case forms a link, made the claim that where a receiver was in possession of lands pursuant to a mortgage debenture secured on the lands pursuant to a contract with, among others, the plaintiff bank in this appeal, that his possession was adverse to the bank. In other words, possession by a receiver is possession by the mortgagor and so adverse to the bank. This was rejected in the High Court and, on appeal, in this Court. Receivership is essentially a device to protect the mortgagee. While the receiver was treated as an agent of the mortgagor, that was to ensure effective dealings with third parties. The concern of the receiver was to ensure the benefit of the secured property for the bank, to which the property was mortgaged. At page 425, Denham J stated:
It is this relationship which governs this case and is the key. Approaching the relationship from another aspect, this unique position may be further illustrated. In considering the possession of land, one has to consider all the relevant circumstances. If a person is in possession with consent, that is a critical factor.
17. At all times Rockrohan were in possession of the lands with the permission of the bank. There is no sense that in making the order that he did on the 16th of February 1987, Blaney J was in some way handing Rockrohan some aspect of possession without the consent of the bank. In no way was this possession adverse to the bank. At any stage, the bank, as holders of an order for sale, would have been entitled to put the property on the market, in which case the lands would, in the course of sale by Rockrohan, be under an implied covenant to yield good title and peaceful possession to a purchaser. The bank held off in this step at the express pleading of Rockrohan to await the end of the litigation. The bank did not have to do this, but everyone involved knew that this was their approach and further knew the reasons why.
18. In terms of fundamental rational, this claim by Rockrohan was correctly characterised by Irvine J, at page 29 of her judgment, as outside the purpose for which limitations on actions to recover land were imposed by legislation. Her reasoning is clearly correct:
Given that so much of the submission of Rockrohan is based upon various provisions of the Act of 1957, it is worthwhile briefly reflecting upon the purpose of legislation of this nature. Limitation statutes are intended to prevent stale claims and to relieve certain classes of defendants of the uncertainty of late claims being made against them. They are designed to further remove the potential injustice that may be generated by the increased difficulty of proving a claim or defence after an extended period of time. Brady and Kerr in their 2nd Ed. of The Limitation of Actions at p. 3 described such concerns as follows:-
“One can therefore conclude that the underlying rationales of the Statutes of Limitations 1957 and 1991, are threefold, and that they may be described as the certainty, evidentiary and diligence rationales.”
These considerations do not apply where one party seeks to enforce a judgment or order previously made against the other party thereto at sometime removed from the date upon which it was made. There is no surprise or evidential unfairness inherent in such a process. This being so there are good policy reasons for the courts to distinguish between “actions” within the meaning of s. 2 of the Act of 1957 and procedures whereby an order or judgment may be executed. Similarly, there are good reasons, beyond the consideration of time limits, why a further distinction should be made between applications for leave to issue execution in respect of a prior order or judgment and an order required for the purposes of giving effect to an existing court order and these reasons emerge in the case law referred to later in this judgment.
19. It might also be noted that here are many aspects of the Statute of Limitations which do not apply to bar litigation or settle entitlements through the passage of time; equity actions are the most obvious example in this regard but, there, equitable principles such as delay and estoppel substitute as a straightforward manner of enabling a fair appraisal of the justice of the situation. Had there been a lack of action by the bank, circumstances might have arisen whereby the bank could possibly be estopped from asserting title as against Rockrohan. That, however, did not happen. Estoppel is the matter which must next be considered, however, in relation to the claim made by Rockrohan.
Estoppel
20. Every fact in this protracted history points to the bank not proceeding because of the posture adopted by Rockrohan in this, and in related litigation. Their position was that there was an expectation of success in the proceedings, whereby the guarantee debenture would be overturned, or to more particularly deal with the representations made, to stop the bank proceeding to obtain an order for sale in this case, whereby a sufficient sum in damages would ultimately be recovered from the State defendants or other defendants to cover and to discharge the debt charged on the land.
21. One of the arguments advanced in the High Court, but effectively abandoned on this appeal, was that the Rules of the Superior Courts would not permit what was contended to be the extension of time necessary under Order 42, rules 23 and 24, whereby leave might be given by the court to issue execution. Irvine J did not find that to be a good argument; and correctly so. She found support for the averments of the bank that it was the existence of these proceedings and the challenges to the underlying securities which resulted in the bank taking no further steps to enforce the order for sale of Blayney J, once it had been made. That must be correct. Everything in this case suggests that the bank did not sleep on its rights or represent that it had no rights, but instead, was primarily concerned to see an end to litigation, which had extended over decades, and which had resulted in an argument being made before Blayney J in 1987 by Rockrohan that time should be allowed to pass in order to facilitate success in that litigation. There is every reason to believe that had the bank not waited until the end of that litigation, the same argument would have been reiterated on every occasion. Furthermore, given that the bank itself was the subject of serious allegations in that related litigation, it was reasonable for the bank not to effectively sell property out from under the feet of one of the litigants in circumstances where serious allegations of breach of contract and tortious wrongdoing were being made against it.
22. The case of Revenue Commissioners v Moroney [1972] IR 372 is an example of a classic estoppel situation; though in that case, estoppel based on representation was at issue. At page 381, Kenny J adopted the formulation from the 26th edition of in Snell on Equity whereby the defence is founded upon unequivocal representation, as opposed to a mutuality of understanding:
Where by his words or conduct one party to a transaction makes the other a promise or assurance which is intended to affect the legal relations between them, and the other party acts upon it, altering his position to his detriment, the party making the promise or assurance will not be permitted to act inconsistently with it.
23. A more modern version of that work, Snell’s Equity, 32nd Ed., (London, 2010), sets out the approach to estoppel which can encompass the embracing by parties of a situation contrary to the accrual of legal rights through representation, or where entitlements can arise through an assumption adopted on the basis of conduct as to how the parties expect each other to act. At paragraph 12-009, this edition indicates:
Where by his words or conduct one party to a transaction freely makes to the other a clear and unequivocal promise or assurance which is intended to affect the legal relations between them (whether contractual or otherwise) or was reasonably understood by the other party to have that effect, and, before it is withdrawn, the other party acts upon it, altering his her position so that it would be inequitable to permit the first party to withdraw the promise, the party making the promise or assurance will not be permitted to act inconsistently with it.
24. Estoppel may go beyond unequivocal oral or written representation. An unequivocal representation, however, is the normal situation. Very often in litigation, it is not the legal basis that is disputed, but the facts whereby estoppel is said to be founded. Facts may be asserted by one side and denied by the other. Estoppel can arise, however, through an assumption shared by those interacting. This does not necessarily always have to be written or spoken once the state of affairs is clear, and therefore obvious, and the parties act upon it. For estoppel to arise, it is essential that there is conduct which establishes an objective state of affairs, whereby the party to be estopped, who would otherwise be bound by the legal relations, is placed in circumstances whereby it is clearly understood that a new state of affairs governs the rights and obligations as between the parties. This requires some demonstrable action, behaviour or representation by the party who is to be bound by the altered state of affairs. It is insufficient, to establish estoppel, merely for the party later pleading that defence to conclude that matters must be so. There must, instead, be a foundation in the behaviour of the party who is to be estopped from asserting a legal entitlement, either pursuant to contract or otherwise. The same applies where estoppel is used not as a shield but as a sword. It would be an unwarranted and dangerous extension of the doctrine of estoppel to permit it to be one-sided; which it would be if based on bare assumption. It has always been central to the equitable principle of estoppel that it derives either from representations or from situations of behaviour that, reasonably construed, clearly withdraw or alter the strictures of legal obligations in such a way that circumstances may later arise whereby it would be unfair to enforce these. Where the matter is one of representation, it should be relatively simple to identify the legal term supposedly set aside thereby, and where, and in what terms, the representation had been directed in this regard. Where, on the other hand, it is a matter of both parties proceeding on the basis of a clear common understanding, the mutual convention of the parties may suffice as a foundation for estoppel. Depending on the facts, estoppel may become operative in that situation, but only because of that common understanding. In Treitel’s The Law of Contract, 13th Ed. (London, 2011) at 3.094 the learned editor sets out the law thus:
Estoppel by convention may arise where both parties to a transaction “act on an assumed state of fact or law, the assumption being either shared by both or made by one and acquiesced in by the other”. The parties are then precluded from denying the truth of that assumption, if it would be unjust or “unconscionable” to allow them (or one of them) to go back on it. Such an estoppel differs from estoppel by representation and from promissory estoppel in that it does not depend on any “clear and unequivocal” representation or promise. It can arise where the assumption was based on a mistake spontaneously made by the party relying on it, and acquiesced in by the other party, though the common assumption of the parties, objectively assessed, must itself be “unambiguous and unequivocal.
25. The decision of this Court in Courtney v. McCarthy [2008] 2 IR 376 has been described as an estoppel by convention finding. In that case, however, there was in fact the clearest possible representation that legal rights were to be held in abeyance, namely the passing of the closing date for the sale of property. Geoghegan J relied on the authority of Amalgamated Property Co. v. Texas Bank [1982] 1 QB 84. At pages 389-390, he set out an analysis of the law, which is of general application to cases of estoppel, as follows:
The case related to a bank guarantee given by a company, the validity of which was being disputed by the liquidator of that company. A question arose as to whether even if the guarantee was not valid an estoppel had arisen by virtue of the conduct of the company which precluded denial of the guarantee. Brandon L.J., though forming the view that the guarantee was in fact effective, went on to consider the estoppel question in the event that he was wrong. Two main arguments against the existence of the estoppel had been put forward in the High Court and the Court of Appeal. The first was that since the bank held its mistaken belief as a result of its own error alone and that the company had at most innocently acquiesced in that belief which it also held, there was no representation which could found an estoppel. The second argument was that the bank was seeking to use the estoppel not as a shield but as a sword and that that was not permitted by the law of estoppel. Brandon L.J. rejected both arguments. He expressed the view that the particular estoppel relied on was of the kind described in Spencer Bower and Turner, Estoppel by Representation (3rd ed., 1977), at pp. 157 to 160 as “estoppel by convention”. He cited the relevant passage of that work as follows:-
This form of estoppel is founded, not on a representation of fact made by a representor and believed by a representee, but on an agreed statement of facts the truth of which has been assumed, by the convention of the parties, as the basis of a transaction into which they are about to enter. When the parties have acted in their transaction upon the agreed assumption that a given state of facts is to be accepted between them as true, then as regards that transaction each will be estopped as against the other from questioning the truth of the statement of facts so assumed.
In this particular case, both parties knew that the contract was lawfully rescinded and both parties accepted that that was to remain the position subject only to the proviso that both would act on the artificial assumption that the contract was still alive and enforceable if the sale was completed on a particular date and time.
Brandon L.J. then dealt with the second argument which, as I have already pointed out, was an argument which featured heavily in this case and particularly in the High Court. Counsel for the plaintiff argued strongly that estoppel here was being used as a sword and not a shield. But this is what Brandon L.J. had to say in relation to this alleged principle at pp. 131 to 132 of Amalgamated Property Co. v. Texas Bank [1982] 1 Q.B. 84:-
In my view much of the language used in connection with these concepts is no more than a matter of semantics. Let me consider the present case and suppose that the bank had brought an action against the plaintiffs before they went into liquidation to recover moneys owed by A.N.P.P. to Portsoken. In the statement of claim in such an action the bank would have pleaded the contract of loan incorporating the guarantee, and averred that, on the true construction of the guarantee, the plaintiffs were bound to discharge the debt owed by A.N.P.P. to Portsoken. By their defence the plaintiffs would have pleaded that, on the true construction of the guarantee, the plaintiffs were only bound to discharge debts owed by A.N.P.P. to the bank, and not debts owed by A.N.P.P. to Portsoken. Then in their reply the bank would have pleaded that by reason of an estoppel arising from the matters discussed above, the plaintiffs were precluded from questioning the interpretation of the guarantee which both parties had, for the purpose of the transactions between them, assumed to be true.
In this way the bank, while still in form using the estoppel as a shield, would in substance be founding a cause of action on it. This illustrates what I would regard as the true proposition of law, that, while a party cannot in terms found a cause of action on an estoppel, he may, as a result of being able to rely on an estoppel, succeed on a cause of action on which, without being able to rely on that estoppel, he would necessarily have failed. That, in my view, is, in substance, the situation of the bank in the present case.
As I have illustrated earlier in this judgment that is exactly the position which pertains in this case.
26. The facts of that case illustrates the principle that what is involved in the matter before the Court is not a case of sleeping entitlement being allowed to die through neglect. Rather, while unequivocal representations by Rockrohan are not to be found to establish an estoppel of the legal effect of the passage of time for limitation purposes, neither can it be said that the bank, as mortgagee, merely jumped to an assumption that everything would remain as it was as and from the order of Blayney J in 1987. On the contrary, the position of the parties was clear. Through the decades following the making of the order, the bank was engaged in protracted litigation, in circumstances where the parties knew that the rights of the bank had been the subject of an order which was being held in abeyance at the express and open request of Rockrohan, made in the public forum of a court hearing, pending an expectation of success by Rockrohan as against that bank and as against the State. There was a common assumption between these parties, reasonably held and based on unequivocal circumstances, that the parties would hold their hand as against each other until such time as that litigation had come to a practical conclusion one way or the other. Had it come to a conclusion as against the bank, both parties assumed, again reasonably, as Rockrohan had expressly and publicly represented, that the debt would be paid out of the profit from the litigation. Had it come to a conclusion, which it did, as against Rockrohan, then that would be the end of any excuse whereby it could be claimed that the bank should hold off on selling the property or in making an application to court, usually only made in the case of some form of difficulty or obstruction, that an order for possession for the purpose of sale was not appropriate.
Action to recover land
27. In addition to the provisions of sections 13 and 18 of the Statute of Limitations 1957 set out in paragraph 11 above, it must be added that section 2(1) thereof, while not containing a definition of what an action is, provides that this word “includes any proceeding (other than a criminal proceeding) in a Court established by law.” Section 11(6)(a) provides that no action is to be “brought upon a judgement after the expiration of twelve years from the date on which the judgement became enforceable.” While section 11(6)(b) provides against the recovery of arrears of interest “in respect of any judgement debt … after the expiration of six years from the date on which the interest became due”, no argument in this regard was pursued at the oral hearing of this appeal. Section 37 also deals with the barring of interest recovery. After an analysis of the relevant case law, the reasoning of Irvine J on the application of the specific interest provisions was shown to be equally applicable to her rejection of the other argument made in relation to adverse possession. At pages 40-41, the trial judge stated:
There are also practical reasons why the Court believes that the provisions of s. 11(6)(b) nor indeed any other provision of the Act of 1957, were [not] intended to apply in the manner contended for by Rockrohan. The relief granted by the court in proceedings brought on foot of an equitable mortgage or charge provides the plaintiff with the right to recover monies outstanding by seeking a sale of the defendant’s lands. That sale is under the control of the court and is for the benefit of all who may have a charge or encumbrance burdening the land. The plaintiff’s ability to realise a defendant’s assets is not entirely within its control. The uncertainty of the plaintiff’s ability to realise the assets the subject matter of the court order within any defined period is all too readily apparent from the facts in the present case. Firstly, there was the delay generated by the earlier proceedings wherein a challenge was made to the security on foot of which the plaintiff obtained its order for sale. Secondly, there was the claim of Mr Hegarty to adverse possession of certain portions of the lands the subject matter of the well charging order. Whilst this claim did not ultimately trouble the Court on the present application, in another case such a claim could have delayed an application for possession or the possibility of [e]ffecting a sale for many years. Finally, the judicial review proceedings instituted by Rockrohan also delayed [the plaintiff bank’s application] for a further period of approximately eighteen months.
Any number of complications may arise, unrelated to any default on the part of a plaintiff, which could result in the lands charged not being sold within six years of obtaining a well charging order. On the basis of Rockrohan’s arguments, the plaintiff might find itself unable, because of matters outside its control, including obstruction tactics on the part of the defendant, to recover the sums due for principal and interest which a defendant had contracted to pay at the time the charge was created. All of these factors would suggest that it is unlikely that the legislature intended to impose any time limit on firstly, the right of a plaintiff to enforce a well charging order, secondly, its rights to take such steps as might prove necessary to enforce that order or thirdly, its right to recover interest on the monies outstanding on foot of such order.
28. It has not been demonstrated that this analysis by Irvine J is in any way incorrect. Rather, that reasoning is compelling. Even were that not so, there has been an action to recover land within the meaning of the Statute of Limitations. The only action there has been, in that regard, ended in an order being made against Rockrohan, in favour of the bank, in 1987. Thereafter, the lands possessed by Rockrohan were subject to the order of the High Court, securing the rights of the Bank, at a time when Blayney J had concluded that no order for possession was necessary, as there was “nothing to suggest that the Bank would be impeded in the sale of the land if the well charging order is made”. Every single step that should have arisen thereafter, and which was only delayed because of the litigation between the parties, would have been conducted through the Examiner’s Office. Conditions of sale would have been set out of court, normally by conveyancing counsel, and the sale would have been conducted by Rockrohan, as vendor, and with the burden of all encumbrances on the land. In the ordinary way, distribution following sale would be by the Examiner’s Office in appropriate order to those banks and other debtors according to the ranking in priority afforded to them by virtue of the date of registry of their charge or other security. The need to seek an order for possession would have arisen through a concern that the vendor would not cooperate in the sale, or would somehow cause prospective purchasers to be put off. Only in that circumstance would it have been necessary to go to court to seek an order for possession for the purpose of sale; though such circumstances are not a prerequisite to the making of such an order. On that necessity arising, which, in fact, it has in this case, due to the most particular circumstances, that would not have been, and this is not, an action to recover land. That action has already taken place. Any order in respect of possession for the purpose of sale is entirely supplementary to the conclusion of that action.
29. The supplementary nature of the order sought is immediately apparent from the nature of is the order sought and the circumstances in which the order for sale was made; and on the basis by which this supplementary step became possible. An action is, of its nature, a dispute between parties, where there is an assertion of fact or an argument of law, whereby one party seeks the benefit of some legal entitlement as against the other. The action in this case took place when the bank, as mortgagee, asserted that they had a charge over the lands held by Rockrohan as mortgagor and whereby Rockrohan had an entitlement to plead to the contrary or to offer any evidence to challenge that assertion, or to demonstrate through cross examination or legal argument that the action should fail. No such step was taken by Rockrohan and in no sense is any aspect of the definition in section 2(1) of the Act of 1957 be taken as embracing supplementary steps once an action, so property described, as either succeeded or failed.
Conclusion
30. Rockrohan, as mortgagor of the lands in County Cork, was made subject to a debenture in favour of the bank, as mortgagee, in respect of borrowings by third parties related to a proposal to develop a mining project through Bula Limited. In 1987, due to the failure of that project, the guarantee was activated by the bank, and the borrowings of the primary debtors were charged as against the lands. While an order for sale was made by the High Court in that year, no order for possession for the purpose of sale was made, because of the express plea on behalf of Rockrohan that other litigation challenging that debt, and alleging other wrongdoing against the bank and other parties, was likely to be successful. As it turned out in the decades thereafter, the expectation of Rockrohan of success and the generation thereby of sufficient funds to repay those liabilities did not come to pass. A claim of adverse possession by Rockrohan, in circumstances where the bank held off the sale of the property in order to facilitate that litigation through to a conclusion, is untenable. Rockrohan continued in possession of the property with the consent of the bank and under the order of the High Court in favour of the bank for the sale of the lands. Consent to the occupation of land and adverse possession are mutually exclusive concepts. Time did not begin to run under the Statute of Limitations 1957 because at no stage was any continued occupation by Rockrohan adverse to the bank’s interest. Even were that so, the motion to obtain possession of the land by the bank as against Rockrohan is not an action to recover land; the concept of action being essential to bar this claim. An action had already taken place, namely the action which resulted in the bank obtaining an order for sale in 1987. Finally, the relation of the parties has been such that each clearly continued, after the order for sale, in a holding position on the mutual understanding that it was only on the conclusion of the related litigation that the repayment of the debt or the disposal of the land would take place. It would be inequitable to allow Rockrohan to now resile from that mutual understanding.
31. The appeal is therefore dismissed.
Supreme Court in Dunne v Iarnrod Eireann
[2016] IESC 47
JUDGMENT of Mr. Justice John Murray delivered the 18th day of May, 2015
1. These two appeals were heard together involving as they do an appeal by the Minister raising essentially the same legal issue in each case. In each case the Minister had applied to the High Court, pursuant to s.16 of the European Arrest Warrant Act, 2003, for the surrender of each of the respondents to Belgium. Belgium had issued separate European Arrest Warrants in respect of each of the respondents. Otherwise the offences, the subject matter of the separate warrants are connected, although the surrender of the respondent, Gerry McGinley, was in respect of significantly more offences than in the case of the respondent, Noel McPhilips. However, any connection between the offences alleged against the respondents is not material to the issues in this appeal. The relevant matter which is common to both cases, and the reasons why both appeals have been heard together, is that in each case the respective trial judges, having refused the appellant’s applications for surrender, made an order for costs in each case against the appellant in favour of the respondent. The Minister has appealed against the order for costs made by the High Court in each case consequent upon the refusal or dismissal of his applications pursuant to s.16. In the case of Noel McPhilips that application was simply refused, and in the case of Gerry McGinley the Belgian government decided not to pursue any further its request for surrender on foot of the warrant. Accordingly, the court decided to refuse the application and made an order striking it out.
2. The essence of the Minister’s contention on appeal is that the respondents having, at the outset of the EAW proceedings, respectively indicated that they wished to benefit from the Attorney General Scheme as to their costs, were not entitled to subsequently resile from this commitment so as to seek and obtain an order for costs in the ordinary way from the Court, following the decision not to make an order for surrender in either case. The facts and circumstances of each case are referred to in summary form hereunder.
Preliminary Issue
3. As is explained later in this judgment an issue arises in this appeal, which the Court has treated as a preliminary issue in the light of the statutory restrictions on an appeal in s.16(11) of the Act of 2003, as to whether the appellant is entitled to appeal the decisions of the High Court in each of these cases on a question of costs only.
Background Facts in the Case of Noel McPhilips
4. A European Arrest Warrant in respect of Mr. Noel McPhilips was endorsed for execution by the High Court on the 2nd June, 2010, which led to that respondent being arrested and brought before the High Court on the 19th June, 2010, pursuant to the provisions of s.13(5) of the European Arrest Warrant Act, 2003, as amended. At that point it is accepted that an indication was given to the High Court by the respondent’s counsel that the respondent would be seeking a recommendation concerning costs of legal representations pursuant to the Attorney General’s Scheme. This was in accordance with the requirements of that scheme, where a litigant must indicate his or her intention to apply for the scheme at the outset of proceedings.
5. Subsequently, this particular case was listed for mention in the High Court on multiple dates without any indication being given by the respondent or his counsel that they did not wish to rely on the Attorney General’s Scheme. By letter dated the 17th November, 2010, and prior to the hearing of the application, pursuant to s.16 of the Act, the solicitor for the respondent wrote to the Chief State Solicitor conveying that he did not propose to rely on the Attorney General Scheme. This was the first such indication.
6. The EAW proceedings in respect of Mr. McPhilips were heard in the High Court on the 24th November, 2010. Having heard the appellant’s application for the respondents surrender, the learned trial judge refused to order the surrender. He adjourned the question of costs to a later date, and gave his ruling on the question of costs on the 30th March, 2011. An issue raised in the High Court, on behalf of the appellant, was his contention that once a litigant had indicated they were opting to rely on the Attorney General’s Scheme in particular proceedings, they could not then resile from that option under the terms of the Scheme as properly understood, or alternatively they were estopped from resiling from it.
7. The learned trial judge awarded costs to the respondent against the appellant, to the effect that the costs up to the date of hearing, 24th November, 2010, were not to exceed the level of costs and fees under the Attorney General Scheme, and the costs thereafter were on the normal party and party basis.
8. In his ex tempore judgment the learned trial judge, Peart J., ruled as follows:
“I have reached the conclusion that there is no estoppel, if you like, which arises from the fact that the Attorney General’s Scheme was sought at the outset. It was inevitable in extradition matters, European Arrest Warrant matters, that when a person is first brought before the court following arrest, there would not be sufficient time between the arrest and his being brought before the court for all the issues that might arise in the proceedings to be known and considered at that point. It would be a wiser caution, in my view, for a Respondent who may feel it necessary to avail of the Attorney General Scheme to so indicate at the outset. But I don’t feel that the Respondent should be precluded from altering that course at some stage, should legal advice to that effect be given to them.”
Background Facts in the Case of Gerry McGinley
9. Mr. McGinley was also brought before the High Court on foot of a European Arrest Warrant on the 20th January, 2011. An indication was given at that time to the court by his counsel that he would be relying on the Attorney General’s Scheme as regards the costs of legal representation. Subsequently, the respondent filed his points of objection in the proceedings on the 8th March, 2011, which included a statement that he would not be availing of the Attorney General’s Scheme. The application for an order directing his surrender, pursuant to s.16 of the 2003 Act, remained pending before the High Court until 19th July, 2012. On that date the application for his surrender, pursuant to s.16 of the Act, was refused and struck out by the High Court in the light of a decision of the Belgian authorities not to pursue its request for surrender.
10. On the 30th July, 2012, the learned trial judge in that case granted an order for costs to the respondent against the appellant. Again in that case the appellant had argued that once a respondent in proceedings such as this indicated to the High Court that he was opting to avail of the Attorney General Scheme, he was not entitled to subsequently withdraw from that position and seek costs against the Minister.
11. The ruling of the High Court by Mr. Justice Edwards on the order for costs was in the following terms:
“That the Respondent do recover his costs against the Applicant on the following basis:
(a) From the date of arrest to the 8th day of March, 2011, such costs to be limited to so much as he would have recovered on foot of a recommendation under the Attorney General’s Scheme;
(b) From the 8th day of March, 2011 to date, full costs on a party and party basis to be taxed in default of agreement;
(c) In the event of an appeal, payment out on account in respect of the costs at (a) and (b) above limited to so much as would have been recovered on foot of a recommendation under the Attorney General’s Scheme, said amount to be paid within three months of presentation of bill;
(d) Stay on the difference between the amount paid out on account pursuant to (c) above and full costs recoverable on a party and party basis to be taxed in default of agreement, until the hearing of any such appeal.”
12. Apparently the reason for the stay was that the appellant had indicated his intention to appeal against the order for costs awarded in this case.
13. One would note in passing that historically the Attorney General Scheme required that the party seeking to rely on it should indicate to the relevant court his or her intention to do so at the commencement of the substantive hearing of the issues on the merits. It would seem that in more recent times that has been changed so as to require such a party to indicate their wish to rely on the Attorney General Scheme at the earliest opportunity, at or after the commencement of proceedings. If clarity is required as to how the Attorney General Scheme should function, and under what conditions it must be accepted, (provided it does not unduly impinge on a person’s constitutional right to have free legal assistance at the appropriate time in certain cases) this could be achieved by amending the rules of the scheme.
The Preliminary Issue in the Appeal
14. Each of these applications for the respective surrender of the respondents on foot of the relevant European Arrest Warrants came before the High Court for a decision pursuant to s.16(1) as to whether or not an order should be made directing their surrender.
15. Section 16(11) provides as follows:
“An appeal against an order under sub-section (1) or (2) or a decision not to make such an order may be brought in the Supreme Court if, and only if, the High Court certifies that the order or decision involves a point of law of exceptional public importance, and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”
16. It is common case that the High Court did not certify any point of law for the purposes of an appeal to this Court, in either case. No application was made for any such certificate. Indeed it is difficult to envisage a discretionary and fact specific question of legal costs ever constituting a point of “exceptional public importance”, which it is desirable in the public interest should be appealed. Absent a certificate there can be no appeal against the ‘decision’, within the meaning of the section, of the High Court. That is self-evident.
17. An issue was raised in these appeals on behalf of the respondents as to whether the appellant was entitled to appeal only that part of the decision of the High Court which concerned the question of costs, notwithstanding the provisions of sub-section (11) and the absence of any certificate.
Arguments of the Parties
18. Counsel for the respondents in this case relied essentially on the decision of this Court in Browne v. Kerry County Council (Supreme Court, Unreported, 24th March, 2014). They also relied on the judgment of this Court in Canty v. Private Residential Tenancies Board [2011] IESC 28. It was submitted that s.16(11) of the Act of 2003 should be interpreted in the same manner and to the same effect as the substantially similar section considered and interpreted in the Browne case. Accordingly, it should be found, it was submitted, that no separate or distinct appeal lay in this case on the question of costs alone in the absence of a certificate from the High Court pursuant to s.16(11).
19. Counsel for the appellant submitted that the phraseology of s.16(11) was materially different than s.50A(7) of the Planning & Development Act, 2000, which was the section considered in the Browne case. Accordingly, it was submitted, the reasoning applied in that case was not applicable to the interpretation of s.16(11) in this case. Accordingly, s.16(11) should not be interpreted as restricting an appeal from the High Court in these cases on a question of costs alone. The costs decision should be treated as a separate matter to the substantive decision in these cases.
20. It was further submitted, as regards the case of Mr. McGinley, that s.16(11) only applied to a decision to grant or refuse an application to surrender, and in that case there was no decision to refuse a surrender. That application was struck out because the Belgian authorities decided not to pursue their application for surrender on foot of the warrant. Since there was no decision to grant or refuse surrender, the restrictive terms of s.16(11) does not apply to an appeal regarding costs only in that particular case.
21. Counsel for the appellant submitted that in deciding this issue that it is a well established principle of construction that any statutory restriction on a right of appeal from the High Court should be strictly construed.
Decision
22. It is self-evident that proceedings which concern the surrender of persons, particularly citizens and residents, to another country for the purposes of being prosecuted for criminal offences, can give rise to important issues of law concerning their liberty and other fundamental rights. Some of those issues may be of grave importance to the person whose surrender is sought, or even of public importance but not, in the words of the section, “of exceptional public importance”, in which case there is no right of appeal from a decision in first instance. It is a serious constraint on the right of appeal normally enjoyed by persons adversely affected by a decision in a court of first instance, in this case the High Court. It is a provision which applies equally to the State as it does to the individual, although in practice it impinges more on the right of appeal of an individual.
23. The restriction in s.16(11) on an appeal is quite broad and emphatic. It says that an appeal may be brought against the High Court “decision”, “if, and only if” the High Court certifies for an appeal. The provision, enacted in 2003, enjoys the presumption of constitutionality. As indicated, the Oireachtas clearly intended to preclude an appeal, even for important questions of law, unless such questions also fell into the category of being a point of law of “exceptional public importance”. Even that is not enough in itself, it must also be “desirable in the public interest” that an appeal should be brought. This is for the High Court to decide. Can it be said that the Oireachtas contemplated that insofar as the High Court decision included a decision related to costs in one form or another that there could be separate litigation and a distinct appeal without any of the limitations in the section on an issue concerning only the legal costs aspect of the decision, important as that may be in itself?
24. The same, or similar, issue was considered in a judgment (ex tempore) of this Court delivered on the 24th March, 2014 (Unreported) in Browne v. Kerry County Council. In that case the provision in question was s.50A, sub-section 7, of the Planning & Development Act, 2000, as inserted by s.13 of the Planning & Development (Strategic Infrastructure) Act, 2006.
25. That provision provides:
“The determination of the Court of an application for section 50 leave or of an application for judicial review on foot of such leave shall be final and no appeal shall lie from the decision of the Court to the Supreme Court in either case save with leave of the Court which leave shall only be granted where the Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.” (emphasis added)
26. In that case the Court concluded, as regards s.50A(7), as follows:
“The Court considers that the determination of the question of costs following a decision on the merits of a case in judicial review is an intrinsic and inherent part of the proceedings, and that the determination of the judicial review, as referred to in s.50A(7), and in particular the reference to the “decision” of the court in that section, encompasses the decision of the court on costs that necessarily follows in one form or the other as part of the determination of the proceedings. Therefore, the Court considers that the question of costs is not an issue which the legislature intended should be capable of being treated as separate from the High Court decision and the subject of a separate appeal without the necessity of a certificate from the High Court to that effect.”
27. In the Browne case the Court also considered the decision of this Court in the case of Canty v. Private Residential Tenancies Board. In that case, the Court was considering s.123(4) of the Residential Tenancies Act, 2004, which restricted an appeal in the following terms:
“The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive.”
28. That section, s.123(4), of the Act of 2004, is in manifestly different terms to the provision in this case, namely, s.16(11) of the Act of 2003. Section 123(4) is also fundamentally different in its terms from s.50A(7) of the Act of 2000, as was explained by Kearns J. in his judgment in the Canty case. Thus, the interpretation of the Court, in the Canty case, of s.123(4) of the 2004 Act is not relevant to the issue in this case. This appears clearly from the judgment of Kearns J. and the appellants have made no reference to the terms of s.123(4), no doubt for that reason.
29. What is relevant in the judgment of Kearns J. in the Canty case, even though it was done by way of obiter dicta, is the consideration and interpretation given by the Court to the terms of s.50(4)(f)(i) of the Planning & Development Act, 2000, which does have a comparative restriction on the right of appeal from a “decision” of the High Court. That provision in the Act of 2000 is in following terms:
“The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.” (emphasis added)
30. As regards that sub-section, Kearns J., at paragraph 14 of his judgment, observed:
“It seems to me, without in any way deciding an issue which was not before this court, that the word “decision” of the High Court in s. 50 can be taken as including any determination of the issue of costs which forms part of its decision in the case.”
31. These observations were obiter, but in the Browne case the Court considered that they were “a correct interpretation of the meaning and effect of a restriction excluding an appeal to this Court from a “decision” of the High Court, unless a certificate has been granted.” I would confirm that I consider that dictum of Kearns J. to be a correct statement of the law. Thus, the determination of the High Court of the question of costs in this case forms part of the ‘decision’ in the case.
32. In this case the relevant provision, s.16(11) of the Act of 2003, refers to an appeal against “an order under sub-section (1) or (2), or a decision not to make such an order”. (emphasis added) This latter phrase cannot be ignored. Thus, the appeal only lies if there is a certificate given in respect of the order or “decision”. Here there was a decision, within the meaning of s.16(11) in each case for different reasons, not to make an order for surrender and to award costs.
33. In any application for surrender coming before the High Court, pursuant to s.16 of the Act of 2003, it is inherent in any decision of the court that such a decision includes a decision in one form or another related to costs. If the respondent in such proceedings is in fact relying on the Attorney General’s Scheme, and seeks a recommendation from the High Court concerning the payment of costs under such a scheme, the court will by order make such a recommendation, or refuse it. Otherwise, the question of costs is a matter for the trial judge’s discretion in the ordinary way. In this case, having concluded and made a decision that no order would be made under s.16(1), the court made an order of costs in each case in favour of each respondent.
34. Although s.16(11) differs in wording from s.50A(7) of the Act of 2006, and s.50(4)(f)(i) of the Act of 2000, it has core elements in common with the latter two sections. These are that s.16(11) imposes a severe and express restriction on the bringing of an appeal from a “decision” of the High Court, and confines the right of appeal to cases in which the High Court certifies that there is a point of law of “exceptional public importance”, which it is “desirable in the public interest” to appeal. For these reasons I consider that s.16(11) must be given a similar interpretation as the Court did to the two other sections in the Browne case, namely, s.50A(7) of the Act of 2006 and s.50(4)(b)(i) of the Act of 2000. Accordingly, a determination on the question of costs consequent on a decision of the High Court on an application before it pursuant to s.16 of the Act of 2003 is an intrinsic and inherent part of those proceedings. The particular reference in s.16(11) to the “decision” of the court encompasses the decision of the court on the application, including the question of costs. Accordingly, an appeal can only lie from the decision of the High Court on any issue of law, including costs, if the High Court issues a certificate under s.16(11).
35. Moreover, one can, in any event, examine and interpret s.16(11) solely by reference to its own terms and meaning without the need to refer to the preceding judgments of this Court in the Browne case or in the Canty case concerning the similar statutory provisions.
36. Section 16(11) does not prohibit an appeal specifically in relation to “an order under sub-section (1) or (2)”. A proper citation of the section must include the phrase which follows those words, namely, “or a decision not to make such an order”. So taking the section in its ordinary meaning by reference to its own terms, it says that an appeal may be brought against “a decision” not to make an order for surrender, “if, and only if” the certificate specified in the sub-section has been granted. Absent that certificate no appeal lies. The express restriction is against appeals from any “decision” on an application under s.16. In other words, a universal or broad exclusion is clearly adopted. Such an interpretation of the section flows from its own terms. Neither is it dependent on whether there was some pre-proceedings administrative process involved in relation to the matters in issue. Accordingly, taking s.16(11) purely on its own terms, its plain meaning ineluctably leads to the conclusion that any appeal from a decision of the High Court under s.16, or any element of the decision (including costs) may only be appealed if the appropriate certificate has been granted.
37. Counsel for the appellant did argue that the issue of costs was a distinct matter from any decision on the merits. Also, he pointed out that the decision on the question of costs was adjourned and dealt with after argument on a separate day to the decision on the substantive proceedings. This tended to highlight, it was submitted, the distinct and separate nature of the question of costs. In my view, the fact that the issue of costs is dealt with separately on a separate day does not affect the interpretation which I have given to the meaning of “decision” in s.16(11). A decision on costs is an intrinsic part of the court’s decision. It is determined, in one form or another, in conjunction with the other issues on the merits, in each case. The question of costs is not the only matter which can be dealt with on a different and separate day to the handing down of a decision on a substantive aspect of proceedings. It is not unusual for the form of an order, or a particular aspect of an order, which is to be made consequent upon a decision in proceedings to be adjourned for argument on a separate date. Adjourning part of a decision for final determination at a later date does not mean that such part could be treated as not forming part of the court’s “decision” in the proceedings, within the meaning of s.16(11).
38. As regards the submission on behalf of the appellant that s.16(11) does not apply to the High Court decision in the case of Mr. McGinley because there was no decision to either grant or refuse a surrender, it must be emphasised again that the terms of s.16(11) refer to an appeal “against an order under sub-section (1) or (2), or a decision not to make such an order”. Where a person is arrested pursuant to s.13 of the Act, on foot of a European Arrest Warrant endorsed under that section, sub-section (5) requires that the person so arrested be brought before the High Court. Sub-section (5) then requires the High Court, once satisfied that the person is the person in respect of whom the warrant was issued, to “fix a date for the purpose of s.16”. Thereafter, the matter remains pending before the court for a decision pursuant to s.16, namely, for a decision as to whether or not an order should be made for the individual’s surrender on foot of the warrant endorsed by the High Court. As indicated above, s.16(11) applies not only to an order under sub-section (1) or (2) for surrender, but a decision not to make such an order. It is clear that the decision in the case of Mr. McGinley was a decision not to make an order for surrender in respect of the application pending before it, pursuant to s.16. The fact that the reason for not making such an order arose from a decision by Belgium not to pursue their application for surrender does not affect the substance of the decision, namely, a decision not to make an order for surrender, on foot of an application to the High Court to that effect. In short, the fact that it was decided not to pursue the application at a particular point does not alter the essential nature of the decision made by the High Court.
39. Counsel also referred to the provision of the Constitution which gives a right of appeal subject to such limitations as may be imposed by law (other than an issue concerning the validity of any law). He correctly pointed out that it is a well established principle of construction that any statutory provision which restricts a right of appeal from the High Court should be strictly construed.
40. As pointed out earlier, the Oireachtas has expressly restricted any right of appeal to certified questions of law which is of “exceptional” public importance, and where it is also “desirable in the public interest” for such an appeal to be brought. Thus, no appeal may be taken from a decision of the High Court under s.16, even though it may involve an important question of law, or indeed be one of public importance, but not exceptionally so, and so forth. Applying the principle of strict construction of the Act I think it is clear that the Oireachtas had in mind any appeal from the ‘decision’ including all elements of the decision, of the High Court, and it is impossible to conceive that with such a broad restriction it was envisaged that an issue confined to the costs only should be litigated further on some separate form of appeal to this Court to the exclusion of all other components of the High Court decision. That would be writing into the sub-section an exception which simply is not there.
41. For the foregoing reasons, I would hold that the appellant is not entitled to appeal the decisions of the High Court in either of these cases by reason of s.16(11), and would propose that the appeal be struck out accordingly.
Judgment of Mr Justice Peter Charleton delivered the 20th day of May 2015
1. A different view is possible as to the restriction on appeals from decisions of the High Court that is imposed by section 16 of the European Arrest Warrant Act 2003, as amended. Central to this appeal was the desire of the Attorney General to clarify if it was ever possible for a person arrested under the Act of 2003 for the purpose of extradition to another European Union country and whose legal representatives had opted at the first appearance of the requested person to ask the judge to note that they would be seeking a recommendation for the form of legal aid known then as the Attorney General’s scheme, to later disavow that request and to instead seek costs as a successful respondent. A preliminary point, however, intervened as to the jurisdiction of this Court to hear such an appeal. In these cases, the respondents were sought on extradition applications, applied for the Attorney General’s scheme and at a time proximate to the ultimate decision announced that they were no longer seeking to rely on that scheme. This meant that costs in the ordinary way were sought when they succeeded, each in different circumstances, in not being extradited.
2. At the time relevant to the two decisions made to award costs to the requested persons, consequent in one case on the requesting country withdrawing the application for extradition and in the other to a decision against extradition, the Court of Appeal had yet to be established. Consequently, the relevant Articles of the Constitution were Article 34.4.1º, which provided that the court of final appeal in our court system should be “called the Supreme Court”, and Article 34.4.3º, which gave to the Supreme Court “appellate jurisdiction from all decisions of the High Court” but “with such exceptions and subject to such regulations as may be prescribed by law”. A regulation, in this context, will order the form of an appeal, for example, when it may be brought or through what form of pleading. An exception to the appellate jurisdiction of the Supreme Court from all decisions of the High Court is an exclusion from the general rule of the complete entitlement under the Constitution of a litigant to appeal High Court decisions to the Supreme Court. Thus far, in these circumstances, a rule of law that here requires something akin to strict construction has not been identified; a cannon invariably applied in this jurisdiction to criminal statutes or legislation which impacts on the liberty of the citizen. This exclusion is, nonetheless, a deviation from the ordinary rule, as set out in the Constitution, that decisions of the High Court are appealable.
3. As Murray J states in the majority judgment, exclusions from appellate jurisdiction have commonly been incorporated in legislation dealing with planning and with refugee status. In the field of planning, the exclusion may be presented in argument, without now deciding the point, to be near universal in respect of all decisions of the High Court. Section 50 of the Planning and Development Act 2000, as amended, requires the speedy initiation of a judicial review claim of any “question” as to “the validity of any decision made or other act done” by either a planning authority or An Bord Pleanála. Section 50A (7) thereof excludes appeals to the Supreme Court without certification of a point of law of “exceptional public importance”. When it comes to claims of refugee status, section 5 of the Illegal Immigrants (Trafficking) Act 2000 also requires most applications to be by way of judicial review and excludes appeals except by leave of the High Court on an exceptionally important point of law. That legislation appears to be less universal in its scope. In providing a list of 14 decisions subject to such restrictions, that Act makes a decision of the High Court final in relation to the making of a deportation order but refusal to revoke a deportation order under section 3(11) of the Immigration Act 1999 is not included and may, notwithstanding that it is apparently anomalous, be appealed in the ordinary way. What both those instances have in common, and it is to be wondered if this is a defining characteristic, is that prior to any High Court hearing, an enquiry followed by the right to a quasi-judicial appeal will ordinarily have held in respect of the impugned decision. Hence, there may be reasons for the Oireachtas to restrict further appeals. This is, as Murray J for the majority so carefully reasons, a matter of statutory construction. The planning code does not appear to treat decisions as to costs as separate, indeed it could be argued that the restriction is against appeals “from decisions” in those cases. In other words, a universal exclusion could be argued to have been adopted. Under the legislation dealing with applications for refugee status, in apparent contrast, the restriction is in respect of particular decisions; listed “as aforesaid” is how the legislation puts it.
4. Neither sets of legislation mentions or separately deals with any question of costs. It is easily to be appreciated that it could be argued to be incongruous to allow appeals on issues of costs while at the same time excluding the substantive issue. Normally, both travel together but that may not be the determining factor. The trouble of especially legislating for or excluding an appeal on costs in our system, where costs under Order 99 rule 1(4) of the Rules of the Superior Courts ordinarily “follow the event”, could be argued to be unnecessary. Nonetheless, it must come down to a question of construction as to whether the legislature has chosen, by failing to exclude an appeal on costs chosen, to allow such an apparently anomalous situation.
5. While respecting both the majority judgment of Murray J and the earlier decisions cited therein, this question appears to not to have previously arisen in this different legislative context; Canty v Private Residential Tenancies Board [2008] 4 IR 592; (Unreported, Supreme Court, 24th March, 2014).
6. Here, on the way the matter is put in the Act of 2003, the wording does not specifically exclude an appeal as to costs. Reasoning from what is in fact excluded, where another aspect of what the High Court may decide is not covered by wording that is sufficiently specific, the general right of appeal as provided for in Article 34.4.3º is not displaced.
7. In that regard, the wording of section 16(11) of the Act of 2003, quoted in full in the judgment of Murray J, only permits an appeal to the Supreme Court on a certificate. However, that prohibition is specifically in relation to “an order under subsection (1) or (2)”; meaning a negative or positive order to allow surrender to a requesting country. Turning to those subsections, these specifically allow the High Court to “make an order directing that the person be surrendered to such other person as is duly authorised by the issuing state to receive him or her”, in the instance of subsection (1), or, as to subsection (2) in identical wording, the only difference being to the subsection directing the setting of the date for such surrender. In referencing “a decision not to make such an order”, as well as “an order” of surrender, what subsection 16(11) contemplates is not any decision of the High Court but, instead, only those two specific decisions.
8. There may also be reasons why the Oireachtas would not bar an appeal in respect of costs. Moving from State funded legal aid, a recommendation in that regard having been sought, to the hazard of perhaps recovering costs in the ordinary way under the Rules of the Superior Courts, has serious implications for the funding of such schemes. Cherry picking can destroy a universal benefit. In the ordinary way, further, costs operate as a separate application upon the delivery of judgment in High Court cases. Costs are often urged not to “follow the event” because this rule is not automatic; costs being as Order 99 rule 1(1) states “in the discretion of those Courts”. Sometimes, where an application for a restriction order in respect of the directors of a failed company seems justified under section 150 of the Companies Act 1990, as amended, costs may not follow the event even though the application fails: Re Doherty Advertising [2006] IEHC 258. Similarly, in criminal cases an accused who is not legally aided but in respect of whom the burden of proof beyond reasonable doubt is not displaced, may not necessarily be awarded costs: The People (Director of Public Prosecutions) v Kelly [2008] 3 IR 202; The People (Director of Public Prosecutions) v Bourke Waste Removal Limited & Others [2011] 1 ILRM 126; The People (Director of Public Prosecutions) v McNicholas [2011] IECCC 2; The People (Director of Public Prosecutions) v Ryan [2014] IECC 1. Even decisions that clearly go against an applicant can sometimes result in a loosing party achieving an award, usually against the State, of some small portion of their costs; Dunne v The Minister for Environment [2008] 2 IR 775, but this is a genuine rarity. Had the Oireachtas wished to exclude all appeals to the Supreme Court in respect of all decisions under the Act of 2003, were not clear forms of wording available to achieve this result? That intention is not apparent from the wording of this legislation, especially read in the light of the provision in the Constitution.
9. Since the Act of 2003 does not specifically exclude an appeal as to costs and since costs is a matter which would not necessarily automatically follow as an integral part of an order, the doubt that arises as to the meaning of the prohibition on appeals to the Supreme Court requires resort to the Constitution to find the fundamental rule. That rule is as stated Article 34.4.1º and has not here been displaced.
10. Hence, the reasoning for this dissent from the majority.
Hamilton v ACC Loan Management Ltd
[2016] IEHC 142
JUDGMENT of Mr. Justice O’Connor delivered on the 18th day of March, 2016
Introduction
1. The issue in this case is whether the plaintiff is entitled to be registered as owner of nearly nine hectares or some 23 acres of lands in the townland of Drumcanon which are contained in Folio 14587 of the Register of Freeholders, County Monaghan (“the relevant lands”) by reason of adverse possession.
The parties
2. Apart from the plaintiff, the only other parties who took an active part at the trial leading to this judgment are the second and third named defendants (“the receivers”). The receivers were appointed by the first named defendant (“the bank”) which had a charge from the plaintiff’s brother dated 2nd November, 2006.
3. It is not necessary to outline the events leading to the agreement between the receivers and the fourth named defendant for the sale of the relevant lands but the following are some relevant facts which are agreed:
1. The plaintiff has been in possession of the relevant lands since his father died in June, 1992;
2. Other lands in the townland of Carnaveagh were transferred to the plaintiff in 1994 from the plaintiff’s late mother (“Mrs. Hamilton”) on which the plaintiff has built his house where he has resided with his wife;
3. Since the early 1990s the plaintiff had his own herd number and has applied successfully for area aid or similar assistance as owner of the relevant lands;
4. Mrs. Hamilton became the owner of the family home and lands which she leased to a company that operates a wind farm. The home and the wind farm are a number of miles away from the relevant lands;
5. Mrs. Hamilton died on the 21st January, 2015, following a diagnosis made a number of years previously that she suffered from Alzheimer’s disease;
6. Agents for the bank came into possession of a copy deed of assent sworn by Mrs. Hamilton on the 25th October, 2006, in her capacity as the personal representative of the plaintiff’s father. By this deed Mrs. Hamilton sought to be registered as owner of four different folios including Folio 14587 containing the relevant lands. Inserted into this deed in manuscript was: “I am entitled to be registered as full owner of the said property”. The author of the manuscript is not identified and the manuscript insertions were not initialled by Mrs. Hamilton nor the practising solicitor before whom the form of assent was sworn on the 25th October, 2006;
7. A copy deed of transfer from Mrs. Hamilton purporting to be the beneficial owner of the relevant lands to the plaintiff’s brother dated the 26th October, 2006, was also produced with a deed of mortgage dated 2nd November, 2006, in favour of the bank for the relevant lands and for the lands owned by the plaintiff’s brother;
8. On the 13th June, 2012, after the plaintiff’s brother had been adjudicated bankrupt by the High Court in Northern Ireland on the 3rd May, 2012, the purported title of the plaintiff’s brother to the relevant lands was registered on Folio 14587 together with the 2006 charge in favour of the bank;
9. Following the appointment of the receivers by the bank, attempts were made on behalf of the receivers to take possession of the relevant lands and the receivers entered into a contract for the sale of these lands to the fourth named defendant.
Animus possidendi
4. The parties have agreed that the issue for the Court to decide relates to the nature and extent of the plaintiff’s possession of the relevant lands. More particularly, did the plaintiff exclude his mother from control of the relevant lands and did he manifest an intention to do so? Animus possidendi is the term which connotes the thrust of these questions.
The law
5. Section 13(2) of the Statute of Limitations 1957 provides that no action to recover land shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing the claim.
6. Another way of approaching the nub of the controversy which arises is to ask whether the plaintiff used the relevant lands for twelve years after the death of his father for himself or in some way with his mother’s conditional consent to possession.
7. The excursus of Black J. in Convey v. Regan [1952] I.R. 56 is the fons et origo for the law in this area. It was followed by Slade J. in Powell v. McFarlane [1977] 38 P & CR 452 and reviewed by Clarke J. in Dunne v. Iarnrod Eireann [2007] IEHC 314 who posed questions for determination which might be rephrased for application in this case as follows:-
1. Is there a continuous period of twelve years during which the plaintiff was in exclusive possession of the relevant lands to an extent sufficient to establish an intention to possess the land itself rather than to fulfil some joint enterprise or other agreement with Mrs. Hamilton?
2. Was the contended for period of possession broken by an act of possession by Mrs. Hamilton?
The plaintiff’s evidence
8. The plaintiff impressed the Court with his candour. Counsel for the receivers rightly assured the plaintiff in cross-examination that it was clear that the plaintiff made no misrepresentation in his affidavit or oral evidence.
Findings of fact
9. The plaintiff’s account of using the relevant lands for his own farm as opposed to some notional farm for the family or with Mrs. Hamilton as contended for by the receivers is accepted by the Court. Despite careful cross-examination based on the transfer of a one-acre plot by Mrs. Hamilton to the plaintiff’s sister in 2006, the plaintiff maintained that the legal formalities for transferring the relevant lands by deed did not arise for discussion. The evidence established that the transfer of the lands actually registered in Mrs. Hamilton’s name to the plaintiff’s sister was given effect in anticipation of seeking planning. The transfer of lands in 1994 to the plaintiff and the plaintiff’s wife from Mrs. Hamilton was also to get planning permission to build the house in which the plaintiff resides with his wife.
10. It was also unequivocally confirmed by the plaintiff also that he alone was involved in farming the relevant lands, seeking grants, and maintaining the herd number.
11. The plaintiff in reply to specific questions stated that he “definitely” was not aware of the deed of transfer to his brother in 2006 until the events leading to these proceedings in 2013. Counsel rightly did not explore what would have happened if he had known, because in effect the plaintiff by his own account – which is not contradicted – was in exclusive possession of the relevant lands from 1992 to 2006 (fourteen years) in any event.
12. Mrs. Hamilton was registered in 1997 as the owner of Folio 14955 of County Monaghan containing 11.2 hectares. The plaintiff explained that those lands were transferred from his grandfather’s estate. These are the lands which were leased in September, 2008 to a company which operates a wind farm. Again, the Court was not persuaded that this in some way undermined the plaintiff’s assertion that he was in exclusive possession of the relevant lands for his own farming and aid applications.
13. The plaintiff was pressed about the reference in his solicitor’s letter dated the 18th August, 2014, which referred to his leasehold interest. This leasehold interest was not asserted after that letter. The plaintiff clarified that there was a lot of emotion arising from the confusion caused by the receivers’ offer for sale of the relevant lands and of lands which were actually purchased by his brother in the vicinity. It is worth noting at this stage that the plaintiff’s brother had purchased a few acres and had allowed the plaintiff to use them for his farm. The plaintiff was willing to buy these few acres from the receivers.
14. Suffice to say that the said letter from the plaintiff’s solicitor on its face would have helped to defeat the plaintiff’s claim were it not for the confusion and emotion which flowed from his mother’s condition and the very late disclosure to the plaintiff of the somewhat irregular looking transactions in 2006. The plaintiff was faced with an astonishing scenario and his bankrupt brother, suffering from a mental health problem in Northern Ireland, did not assist in explaining matters. The Court accepts that the plaintiff never had a lease of the relevant lands and that he cannot be bound by a letter from his solicitor which does not recount the entire history of the plaintiff’s involvement with each portion of the lands mentioned in the two folios identified in the subject line of that letter.
15. There was no evidence to infer any improper motive on the part of the plaintiff for delaying his application to register the relevant lands in his name until after the death of Mrs. Hamilton on the 21st January, 2015. The plaintiff understandably did not feel that his late mother could or should be troubled given her condition and the plaintiff’s de facto exclusive occupation, control, and use of the lands as part of his own farm.
Bank of Ireland
16. By without prejudice letter dated the 21st August, 1992, from the Bank of Ireland addressed to the plaintiff, it was offered that the debt owed by the plaintiff’s father and himself could be discharged by the payment of £50,000.00. In the end this sum was paid for from the sale of five acres and over subsequent years from the plaintiff’s farm income. The plaintiff explained that Mrs. Hamilton had her own regular income from “her bit of a job” and that the plaintiff paid off the bank from sales of his own cattle and further borrowing. Therefore there is no basis arising from these facts to suggest that the plaintiff’s occupation and control of the relevant lands was in some way a joint enterprise with Mrs. Hamilton. Mrs. Hamilton’s passiveness allowed the plaintiff to acquire an adverse possession title as has arisen in other farming families in Ireland.
17. For the sake of clarity, the Court noted that a “little parcel of land” contained in Folio 14587 was sold around 1993 and the proceeds of same were applied to the reduction of the debt agreement with Bank of Ireland. This fact does not take from the continuous period of occupation and control by the plaintiff of the relevant lands for in excess of twelve years.
Conclusion
18. The Court finds that there was a continuous period in excess of twelve years during which the plaintiff was in exclusive possession and control of the relevant lands, and that that possession was not broken by any act by Mrs. Hamilton. The plaintiff’s claim for a declaration that he is in adverse possession and is entitled to be registered as owner of the relevant lands contained in Folio 14587 of the Register of Freeholders, County Monaghan may therefore be granted. The parties are invited to make submissions in respect of the precise order which ought to be made.