Abraham v Oakley Park Developments Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Tony O'Connor
• Judgment Date: 08 December 2016
• Neutral Citation: [2016] IEHC 790
• Docket Number: [2014/4211 P]
• Court: High Court
• Date: 08 December 2016

[2016] IEHC 790

THE HIGH COURT

O'Connor Tony J.

[2014/4211 P]

BETWEEN

SEAN ABRAHAM

AND

PAULINE ABRAHAM

PLAINTIFFS

AND

OAKLEY PARK DEVELOPMENTS LIMITED

DEFENDANT

Land &Conveyancing – Registration of Title Act – Contract to purchase property – Determination of boundary – Nemo Dat Quod Non Habet – Harassment – Damages

Facts: The plaintiffs sought declaration of ownership in relation to a certain folio and rectification of maps in order to show the true demarcation of lands of the plaintiffs and the defendants. The plaintiffs also sought damages for harassment by the defendant for demolishing the plaintiffs' fence and putting a mark on the plaintiffs' shed. The defendant asserted that the title of the relevant folio vested with them as they had uninterrupted possession of those lands and the same had been acknowledged by them by making planning applications and erection of replacement fences. The key issue for the Court was to determine the exact boundary to correctly identify the plaintiffs' lands from that of the defendant.

Mr. Justice Tony O'Connor held that the title of the disputed folio had vested with the plaintiffs. The Court awarded damages to the plaintiffs for carrying out the replacement work in order to give effect to the Court's determination that the boundary line, as asserted by the plaintiffs, was correct. The Court awarded damages to the plaintiffs for harassment. The Court held that the conduct of the defendant in unilaterally asserting their title over the disputed folio and demolishing the plaintiffs' fence had amounted to harassment. The Court also granted a limited stay on its order in the event of an appeal. The Court observed that the primary source for determination of boundary line was the deed of transfer and the plan attached could not be relied upon for the delineation of the boundaries. The Court opined that any conflict between the dimensions set out in figures on a plan could be resolved by referring to the topographical features of the property that existed when the conveyance deed was executed. The Court found that the map provided by the parties did not correspond to the real situation and thus, the actual boundaries could only be ascertained by looking at the physical attributes of the property comprising the line of trees and long-standing fence that was in existence at the time the transfer deed was executed.

JUDGMENT of Mr. Justice Tony O'Connor delivered on 8th day of December, 2016

Introduction

1 This judgment concerns a boundary dispute which emerged in August 2013. The Court is asked now to determine a boundary between Land Registry folios. The Court is also required to consider the inviolability of the Plaintiffs' family home garden and the remedies available to protect same.

Generally

2 The former Deputy Registrar of Titles, Mr. John Deeney, succinctly explained at [12.07] in his book entitled Registration of Deeds and Title in Ireland (2014) :-

'Under present arrangements, whether the title to land is registered or unregistered, the primary source of the boundary line between any two adjoining properties is the original deed whereby the ownership is divided. On first registration, this might comprise the descriptions contained in a deed or map endorsed on such deed or a prior deed or both deeds and maps read together. These matters together with possession, the contract map, the application map, use and occupation, other deeds, features, witnesses, inferences and presumptions, can all be taken into account if the issue of the precise position of a boundary line falls to be determined by the court. However, it is not the case that the boundary as shown on the Land Registry map is of no relevance in the case of a neighbour dispute, as in the absence of any other evidence, it may well prove conclusive. An effect of the rule is that the State guarantee does not apply in the case of non-conclusive boundaries; thus compensation is not payable for discrepancies within the acceptable margins of error... It is to be noted that whether or not a discrepancy is substantial or minor in nature may not necessarily depend on the significance to the title of the portion involved'.

3 The non conclusive nature of boundaries and file plans [save for entries made pursuant to Sections 86 to 88 of the Registration of Title Act ('ROTA 1964')], is widely known and publicised by the Property Registration Authority ('PRA').

The Creation of the Relevant Folios and Maps

4 Mr. Osmond Brady testified that his late father bought a farm and pub in the late 1950s. These lands containing some 37 acres in Straffan, Co. Kildare were comprised in Folio 13741F Co. Kildare ('the Parent Folio').

5 In 1979, Mr. Brady agreed to buy from his father a small corner of the Parent Folio containing 0.24 of an acre (0.097 hectare) acre which was carved off into Folio KE7062F and identified as Plan 23 ('Plot 23'). Folio KE7062F and its file plan remained the same despite the transfer into the joint names of Mr. Brady and his wife ('the Bradys') in 1985 and the subsequent transfer to the Plaintiffs in 2008. The land was identified on an Ordnance Survey of Ireland '(OSi') map which was then last revised before 1970 for the purpose of registration.

6 In 1998, the Bradys, following agreement with Mr. Brady's father, increased the area for the garden around their home by creating a semi-circular area and moved their road entrance. This transaction resulted in the creation of Folio KE34848F which is now registered in the name of the Defendant while the extra part transferred to the Bradys for their garden extension, remained in Folio KE26791F and is identified on Plan number 38 ('Plot 38'). The slightly curved boundary on the northern side for the Plaintiffs' boundary became more apparent on the map for the garden as a result.

Physical Features.

7 According to Mr. Kestell's draft map 1a, a beech tree ('the beech tree') was located within the garden of the Bradys' home garden before any transfer to the parties in these proceedings. Therefore the map which was used in 1979 to create Folio KE7062F included the area on which the beech tree was located in Plot 23. The map which was used to create the Defendant's folio (KE34848F) in March 2001 according to the surveys of Mr. Kestell and Mr. Holton indicated that the beech tree fell just outside the more slightly curved line for the northern boundary of Folio KE7062F.

Fencing.

8 At the time of each of the transfers to the parties in these proceedings, there was a steel post and wire fence to the northern side of the beech tree which connected to a gateway behind the outhouse. Mr. Brady replaced fencing with 'stud farm fencing' (two rails between timber posts). The demarcation of the garden by the fencing remained the same at the time when the Bradys sold each part of the lands to the Defendant in 2000 and the Plaintiffs in 2008.

9 Particularly relevant for this judgment was the undisputed evidence of Mr. Brady that there was a steel post and wire fence to the northern side of a row of trees which connected to a gateway behind the outhouse. This fencing was in place when the Defendant agreed to purchase part of the lands comprised in Folio KE26791F for which the Transfer described the lands as ' having an area of 2.057 hectares or 5.079 acres and more particularly delineated on the map annexed hereto and thereon surrounded by a red verge line' ('the two hectare field').

Absence of Conclusive Boundaries Condition

10 Special Condition 4 of the contract in 2000 between the Bradys and the Defendant provided that the Defendant ' shall be conclusively deemed to have full knowledge of and to have satisfied itself as to the identity, boundaries, extent and measurements of the' land.

Rural Place

11 The Transfer to the Defendant dated 20th December 2000 ('the Transfer'), which referred to a consideration of IR£1,500,000.00 included a certificate for stamp duty purposes that ' the sale is wholly attributable to property which is not residential property'. (Emphasis added). The witnesses who saw the land prior to 2000 knew that the land purchased by the Defendant in 2000 was a field and that part of it had been used as a football pitch. The Defendant purchased it in the hope of obtaining planning permission for a residential development which was later issued for relatively low density housing.

12 The parties in 2000 were not bringing an exactitude which one might expect for boundary definition in an urban development. On the contrary, the Bradys and the Defendant acknowledged the boundary as it existed on the ground by the fencing and tree line which marked the reality.

13 As explained, the subdivision of Folio 26791KE created the Defendant's Folio KE34848 and it required the lodgement of a map in the Land Registry. A copy of this map was attached to the Transfer dated 20th December 2000. It was an OSi 'Rural Place Map' with a 1:2500 scale which showed a curved shape to the northern boundaries of Plots 23 and 38 with a red line superimposed rather roughly over a black line.

14 In summary, by December 2000 when the Defendant acquired the two hectare field, there was physical evidence on the ground of the boundary between the Bradys' then home garden and the two hectare field bought by the Defendant. Mr. Power of the Defendant accepted that the fence along which the Defendant constructed a concrete post and timber fence in 2008 existed since the Defendant acquired the two hectare field. He also explained that a mesh steel fence supported by concrete base blocks was completed by the Defendant in 2008 further along that line on to the western boundary to secure the Defendant's building site for health and safety reasons.

15 The Court is satisfied from the evidence that the Bradys, and then the Plaintiffs, have remained in possession of the disputed stretch of land ('the sliver of...