Bracken v Byrne and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 11 March 2005
• Neutral Citation: [2005] IEHC 80
• Docket Number: [No. 2742P/2002]
• Court: High Court
• Date: 11 March 2005

BRACKEN v BYRNE

BETWEEN

JOAN BRACKEN

PLAINTIFF

AND

CATHERINE BYRNE OTHERWISE CATHERINE RENEE BYRNE (AND BY ORDER OF THE MASTER OF THE HIGH COURT MICHAEL BYRNE)

DEFENDANTS

[2005] IEHC 80

[No. 2742P/2002]

THE HIGH COURT

SUCCESSION

Appropriation of lands

Deed of settlement - Right of residence - Right of maintenance and support - Registered land transferred to child subject to right of residence and maintenance of other unmarried children - Whether entitlement to have right of residence converted into money - Whether reasonable to require beneficiary to be satisfied with enforcement of enjoyment of rights by injunction - Registration of Title Act 1964 (No 16), s 81 - Johnston v Horace [1993] ILRM 594 considered - Sum of €230,020 awarded to plaintiff (2002/2742P - Clarke J - 11/03/2005) [2005] IEHC 80 - [2006] 1 ILRM 91 - Bracken v Byrne

Facts: section 81 of the Registration of Title Act 1964 provides: “a right of residence in or on registered land…shall be deemed to be personal to the person beneficially entitled thereto and to be a right in the nature of a lien for monies worth in or over the land and shall not operate to create any equitable interest in the land”. The plaintiff’s father had executed a deed of settlement whereby he transferred a farm and dwelling house registered on the folio of freeholders to the first defendant, the plaintiff’s sister, and her husband subject to the right of the plaintiff to reside and be maintained and supported in the dwelling house at any time she chose whilst unmarried. The first defendant’s husband since died and the farm was transferred to the first defendant’s son, the second defendant, subject to the plaintiff’s rights. The plaintiff brought proceedings seeking, inter alia, the payment of a sum of money to represent the value of the right of residence, maintenance and support.

Held by Mr Justice Clarke in awarding the plaintiff €236,020 in lieu of enforcement of her right of residence, maintenance and support that the primary entitlement of a beneficiary of a right was to have that right enforced and therefore the beneficiary should be entitled to appropriate injunctive relief to ensure that they could enjoy that right. There could be circumstances, however, where that would not be practical or reasonable and, in such circumstances, the appropriate form of redress would be to value the rights and direct that the beneficiary be paid for those rights rather than to grant injunctive relief.

In addition to proving that it had become unreasonable to require the beneficiary to be content with the exercise of the rights due to a breakdown in a quasi family relationship between the beneficiary and the owner, it was also necessary that the balance of responsibility for that situation lay with the owner in order that those rights be converted to money.

The ability of the defendant to pay the sums thus awarded would also be an important factor in the exercise of the court’s discretion as to whether the remedy should be by way of injunctive relief or the payment of the sum of money in lieu thereof.

That section 81 of the Act of 1964 only related to rights of residence and not to rights of maintenance and support but that, on the facts, it was not practical to require the exercise of a right of maintenance and support without also requiring the exercise of the right of residence.

Reporter: P.C.

REGISTRATION OF TITLE ACT 1964 S81

JOHNSTON & ANOR v HORACE 1993 ILRM 594

MCCARRON v MCCARRON UNREP SUPREME 13.2.1997 1997/4/1414

PLIMMER v WELLINGTON CORP 1884 9 AC 699

Mr. Justice Clarke

1 On the 24th July, 1967 William Bracken, on the basis of a then intended marriage between his daughter Catherine Mary Bracken and Timothy Byrne, executed a deed of settlement ("the deed of settlement") whereby he transferred all of the properties described in Folio 2242 of the register County Wicklow to Catherine Mary Bracken and Timothy Byrne so that after their marriage they would become joint tenants in fee simple of the property subject to certain rights.

2 Insofar as material to this case the rights specified are those at item 2 in the deed of settlement which conferred the right upon "Joan Bracken and Mary Bracken (daughters of the said William Bracken and Mary Bracken) to reside and to be supported and maintained in the said dwelling house at any time they or either of them during their respective lives shall choose to reside there whilst unmarried".

3 The plaintiff is the Joan Bracken mentioned in that clause in whose favour a right of residence and maintenance and support was conferred by the deed of settlement. The defendant is the Catherine Mary Bracken to whom, in conjunction with her soon to be husband Timothy Byrne, the property was vested. Mary Bracken, who is also mentioned in the clause conferring rights, has long since married and no right continues to subsist in her favour.

4 For much of the intervening period Joan Bracken lived and worked in different guises in Dublin but did from time to time visit the family home. That home was itself replaced by a more substantial dwelling which remains in the ownership of the first named defendant. Timothy Byrne, unfortunately, died on 21st February, 2000. In addition the second named defendant, Michael Byrne, who is a son of Timothy Byrne and the first named defendant has benefited by the transfer to him of part of the lands which were previously comprised in Folio 2242 County Wicklow subject to the rights of maintenance and support in favour of the plaintiff.

5 In those circumstances the house, in respect of which the right of residence exists, remains in the ownership of the first named defendant while the lands out of which the right of maintenance and support is to be met are now, in substance, owned by the second named defendant.

6 In order to understand fully the issues between the parties it is necessary to describe in some detail events in the latter part of the 1990s and the early years of this decade. In circumstances which are not particularly germane to these proceedings the plaintiff suffered significant financial reversals in the mid to late 1990s which culminated in her finding herself in a position where, contrary to her previous life experience, she had no significant employment, no interest of ownership in any residential property and only a relatively small sum of cash in capital (being the net proceeds that were left after the disposal of a restaurant business which had not been a success and the premises in which the business was conducted having been the subject of a fire in circumstances where it was underinsured).

7 In all those circumstances it was suggested to the plaintiff by the first named defendant (in conjunction with her husband) that she should come to reside in the family home. It seems clear that neither party had, at that time, got in the forefront of their minds the fact that the plaintiff might have a legal entitlement so to do. However the plaintiff did, in fact, go back to reside in the family home and appears for some reasonable period of time to have lived there as a member of the family and to have enjoyed support and maintenance in practice even if same was not consciously being provided in fulfilment of the obligations under the deed of settlement.

8 It is again common case between the parties that during 1999 a suggestion was made to the plaintiff by the first named defendant and her husband that the plaintiff would be provided with a site on a separate plot of ground which was also in the ownership of Timothy Byrne. In general terms it seems that such an arrangement was perceived to be advantageous to all concerned in that the site was nearer to Dublin where much of the plaintiff's interests were still centered. She had also gained employment which by that time again required her to travel to Dublin.

9 What is, however, in serious controversy between the parties is the basis on which such a site was to be provided. The plaintiff gave clear evidence that the contemplated arrangement was that she would be given the site fully to the extent that it would be placed into her name. She accepted that it would have been for her to secure the building of a house on the site. She had retained the capital sum previously referred to and it was envisaged that that sum, perhaps topped up by a relatively moderate mortgage, would be sufficient to build a house.

10 The first named defendant has equally strongly maintained that the arrangement was to the effect that the plaintiff would be given only a limited interest in the property. I will return to this conflict of evidence later in the course of this judgment.

11 It is again common case that on foot of whatever arrangements may have been in place the plaintiff sought and ultimately secured planning permission from Wicklow County Council in respect of the building of a dwelling house. It is also common case that contact was made, on the recommendation of the first named defendant, with a builder who provided a quote for the construction of the dwelling house concerned.

12 Unfortunately just as the planning process was coming towards a close Timothy (who was more normally called Theo) Byrne died some few months after notification of intention to grant planning permission had been given and very soon after the final notification of the grant of planning permission had occurred.

13 Soon after that disputes arose between the plaintiff and the first named defendant as to whether she was to receive a limited interest in the site or was to obtain it entirely in her own name. There can be little doubt that those disputes led to a significant worsening of relations between the parties. As a result the plaintiff investigated her legal entitlements and ultimately received advice on the provisions...