Dooley v Flaherty
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 18 November 2014 |
| Neutral Citation | [2014] IEHC 528 |
| Court | High Court |
| Date | 18 November 2014 |
[2014] IEHC 528
THE HIGH COURT
AND
Property & Conveyancing – Lease – Life tenancy – Ownership – Adverse possession – S. 13(2) of the Statute of Limitations 1957.
Facts: The plaintiffs agreed to purchase a property believed to be vacant and only subject to a life tenancy. The plaintiffs' had undisputed title to the property. The defendant claimed adverse possession of the property. The defendant claimed that pursuant to the provisions of s. 17(2) of the Statute of Limitations 1957 time began to run in favour of the defendant from September 1998 onwards, the last paid rent. The plaintiff claimed that the running of the time would be interrupted due to the act of repair work undertaken by the plaintiffs. The plaintiffs contended that the plaintiffs insured the property for the entire relevant period.
Mr. Justice Hogan held that the application seeking declaration of entitlement to possession of the property would be granted. The Court observed that the plaintiffs performed acts of possession. The Court held that the defendant failed to make out a case for adverse possession. The Court observed that in the absence of a written lease, the limitation of time would begin to run as the weekly tenancy would be artificially determined by s. 17(2) of the Statute of Limitations 1957.
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.
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.
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 13 th, 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.
9. Ms. Cullman 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.
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 4 th 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 12 th 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.
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...
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