Byrne v Dublin City Council

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 22 March 2018
• Neutral Citation: [2018] IEHC 597
• Docket Number: [2017 No. 182 CA]
• Court: High Court
• Date: 22 March 2018

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

BETWEEN

MARY BYRNE

PLAINTIFF

AND

DUBLIN COUNTY COUNCIL

RESPONDENT

[2018] IEHC 597

[2017 No. 182 CA]

THE HIGH COURT

Land – Adverse possession – Notice to quit – Plaintiff seeking possession of land – Whether the plaintiff acquired title by way of adverse possession

Facts: The plaintiff, Ms Byrne, purchased No. 33 Brian Road, Marino, Dublin 3 in 1993. A plot of land was situated at the rear of No. 33 Brian Road. A number of properties on St. Declan's Road, Brian Road and Brian Avenue, Marino adjoined the land. A notice to quit the land was served on the plaintiff, dated 19th December, 1995. The plaintiff maintained that she had been in exclusive possession of the land since 1993. In November 2010 the plaintiff applied to the Property Registration Authority for first registration on the grounds of long possession. She renewed the application in August 2015. The defendant, Dublin County Council, owned the paper title to the land. The defendant proposed dividing up the land amongst the adjoining neighbours. The dispute came before the High Court as an appeal from the Circuit Court. The plaintiff submitted that the 12 year period required for adverse possession commenced on 19th February, 1996, the date of the expiry of the notice to quit. It was submitted that during this 12 year period the plaintiff was in clear possession of the land and had the intention to possess the land; maintenance of the land and securing of the boundaries were demonstrative of such.

Held by Meenan J that the plaintiff had both the requisite intention to possess (animus possidendi) and the factual possession of the land. Meenan J held that although the defendant owned the paper title, it carried out no act of ownership on the land since the service of a notice to quit on the plaintiff in December 1995 other than indicating a desire to subdivide the land amongst the neighbours.

Meenan J held that the plaintiff acquired title by way of adverse possession to the land on 20th February, 2008, 12 years after the expiry of the notice to quit. Therefore, Meenan J affirmed the order of the Circuit Court.

Order affirmed.

JUDGMENT of Mr. Justice Meenan delivered on the 22nd day of March, 2018.

Background

1 This is an appeal from the Circuit Court concerning the ownership of a plot of land ('the land') situated at the rear of No. 33 Brian Road, Marino, Dublin 3. A number of properties on St. Declan's Road, Brian Road and Brian Avenue, Marino adjoin the land.

2 The plaintiff is the owner of No. 33 Brian Road and the defendant has the paper title to the land.

3 In order to determine whether the plaintiff has acquired title by adverse possession of the land it is necessary to examine the history of both No. 33 Brian Road and the land. No. 33 Brian Road was formerly owned by the plaintiff's grandfather, Mr. Michael Byrne. Mr. Byrne died on 23rd February, 1960 and he bequeathed the property to his wife, Mrs. Bridget Byrne.

4 On 3rd March, 1981, Mrs. Byrne was registered as the fee simple owner of No. 33 Brian Road (Folio DN 23259F). Mrs. Byrne died on 8th January, 1993 and she bequeathed No. 33 Brian Road, including the land, to her children, subject to the right of any of her children or grandchildren to purchase same. The plaintiff, a grandchild of Mrs. Byrne, purchased No. 33 Brian Road in 1993. The plaintiff has been living in No. 33 Brian Road and maintains that she has been in exclusive possession of the land since 1993.

5 It would appear that the defendant let the land in or around 1934 in four plots to Mr. Byrne at a rent of 37p per annum per plot. The rent was paid until 1985 and no payment has been made since. An order of the Assistant City Manager of the defendant dated 13th October, 1994 states:-

'Re: Plot of ground at rear St. Declan Road, Brian Road and Brian Avenue, Marino.

The large garden colour red on the attached map was let to Mr. Michael Byrne, the tenant purchasers of No. 33 Brian Road, in the early thirties. It was let as four plots at rents of 37p per annum each. The last rent was paid for 1985. Some of the residents of the houses surrounding the plot wish to obtain part of the site for use in conjunction with their present holding. Accordingly, it is desired to terminate the original tenancy of Mr. Michael Byrne.

Mr. Michael Byrne and his widow Mrs. Bridget Byrne are now both deceased. The house, 33 Brian Road, is reputed to be now occupied by their granddaughter.

I recommend that notice to quit be served on the present owner of No. 33 Brian Road in respect of the large garden at the rear.'

The 'large garden' at the rear is the land the subject matter of these proceedings.

6 Following the said order of the defendant's Assistant City Manager, a notice to quit the land was served on the defendant, dated 19th December, 1995. The notice to quit stated:-

'I hereby give notice that you are required to deliver up possession of the plot of ground at rear 33 Brian Road, Marino, Dublin on 19th February, 1996.

Please remove all your goods and belongings from the area by the above date.

If you refuse or neglect to deliver up possession of the said plot of ground on the said 19th February, 1996, ejectment proceedings will be instituted against you.

Dated 19th day of December, 1995.

Signed: Assistant City Manager.'

7 Subsequent to the notice to quit, there was correspondence between the then solicitors for the plaintiff and the defendant. Unfortunately, some of this correspondence has been mislaid and all that is now available are the replies from the defendant. These letters dated 26th January, 1996 and 20th February, 1996 indicate an intention on the part of the plaintiff to become registered as the owner of the land in the Land Registry.

8 The plaintiff gave evidence that the land was effectively used as the garden for No. 33 Brian Road. In the early years, the late Mr. Byrne used the land to grow fruit and vegetables; he constructed a glass house and kept hens on the land. Following the death of Mr. Byrne, Mrs. Byrne continued to use the land as part of the garden. She fenced off part of the land with a wire mesh fence so as to make the land inaccessible by any route other than through No. 33 Brian Road. It would appear that in the years after the death of Mr. Byrne, the growing of fruit and vegetables ceased, hens were no longer kept and the glass and hen houses fell into disrepair. However, during this period it would appear that the grass was cut and the boundaries were maintained on a regular basis by the Byrne family.

9 In November 2010 the plaintiff applied to the Property Registration Authority for first registration on the grounds of long possession. Following an exchange of correspondence, the plaintiff did not proceed with this application but subsequently renewed the application in August 2015.

10 The renewed application brought about a reaction from the defendant and the neighbours which led to these proceedings. Doors, gates and gaps began to appear in the boundary walls, fencing and bushes. The neighbours started planting and using the land for social events. Presumably, this was all with the aim of establishing that the plaintiff had not acquired title to the land and that the defendant could proceed with its plan to divide the land among the neighbours.

11 It is common case that the defendant owns the paper title to the land. The defendant proposes to divide up the land amongst the adjoining neighbours. However, should the plaintiff successfully establish that she has acquired title to the land by way of adverse possession then this division cannot proceed. It is in these circumstances that the dispute now comes before this Court.

Statutory Provisions

12 The relevant provisions of the Statute of Limitations Act 1957 (as amended) are:-

Section 13(2):-

'The following provisions shall apply to an...