Geraghty v Quinn and Others
| Jurisdiction | Ireland |
| Judge | Miss Justice Laffoy |
| Judgment Date | 05 June 2008 |
| Neutral Citation | [2008] IEHC 166 |
| Docket Number | No. 364 P/2006 |
| Court | High Court |
| Date | 05 June 2008 |
AND
[2008] IEHC 166
THE HIGH COURT
SALE OF LAND
Right of way
Contracts for sale of lands - Special conditions - Right of way - Right of passage - Way-leave for services - Whether agreement to provide right of way for retained lands to and from public road- Whether agreement to provide passage and running of services to and from retained lands - Whether obligation to extend distributor road to existing public road - Construction of special conditions - Purpose of facilitating access - Dwyer Nolan Developments Ltd v Kingscroft Developments Ltd [1999] 1 ILRM 141 - Breach of contractual obligations found; appropriate remedy to be determined (2006/364SP - Laffoy J - 5/6/2008) [2008] IEHC 166
Geraghty v Quinn
Facts: The plaintiff claimed that the defendants had breached a contract for the sale of land in their failure to ensure that a right of way was granted to a public road that resulted in the land being landlocked. The plaintiff claimed a right of way and way leave services and that they were so entitled by way of the special conditions to the contract.
Held by Laffoy J. that the defendants had contested the plaintiffs proper entitlement under the special conditions and the plaintiffs were entitled to be protected by an appropriate remedy. Any other construction of the contract would not accord with common sense. The Court would hear further argument as to the appropriate remedy for a finding of breach of contract.
Reporter: E.F.
DWYER NOLAN DEVELOPMENTS LTD v KINGSCROFT DEVELOPMENTS LTD 1999 1 ILRM 141 1998/17/6648
At the date of her death, Agnes Armstrong was the owner in fee simple of lands at Ashbourne, County Meath. The lands were registered on folio 17975 of the Register of Freeholders, County Meath. Following the death of Agnes Armstrong, her personal representative, William McGrath (the vendor), sold two parcels of the lands registered on folio 17975 to Owen O'Brien (in trust) by two separate contracts, each dated 23rd September, 2002. The purchaser purchased in trust for the defendants. Ultimately, by virtue of two transfers dated 27th February, 2003, the two parcels of land were transferred by the vendor to the defendants.
The interest of Agnes Armstrong in the portion of the lands registered on folio 17975 not sold by the vendor (the retained lands) devolved to and the retained lands are now owned by the plaintiff. By an assignment in writing dated 25th January, 2006, the vendor, as personal representative of Agnes Armstrong deceased, assigned the benefit of the two contracts dated 23rd September, 2002 to the plaintiff. The plaintiff brings these proceedings as the owner of the retained lands and as the assignee of the vendor's interest in the two contracts. The defendants are sued as the principals for whom the purchaser contracted to purchase in trust and as the persons to whom the lands the subject of the two contracts (the sold lands) were transferred.
Before the sales to the purchaser, the lands registered on folio 17975, which comprised 15.0011 hectares, equivalent to approximately 37 acres, were used for agricultural purposes. On the southernmost portion of the lands there was a dwelling house and outbuildings. The lands, house and outbuildings were accessed over a roadway known as Race Lane, which was a public road in charge of the local authority, Meath County Council. The public road extended only a short distance northwards along the western boundary of the lands which were registered on folio 17975, along an area which mainly comprised a narrow spur of land to the south of the buildings. On the evidence adduced at the hearing, which was not precise, it would appear that the public road extended beyond the southernmost tip of the spur for a distance of between 12 and 13, or maybe 14, metres. A private road extended northwards beyond the public road at Race Lane along the western boundary of the lands registered on folio 17975. The private road was in the ownership of J. & M. McCabe Properties Limited (McCabe) which, as I understand the position, carried out development on its far (western side). I will refer to the McCabe private road as "the private road".
In one of the contracts dated 23rd September, 2002 the vendor sold part of the lands registered on folio 17975 comprising 1.562 acres to the purchaser for €200,000. In the other, an area comprising 9.47 acres was sold to the purchaser for €800,000. The retained lands comprise approximately 26 acres. The issues in these proceedings arise out of special conditions 6, 7, 8 and 9 in the contracts.
In special condition 6, having referred to the retained lands, it was provided as follows:
"The Purchaser shall apply for construction of a distributor road the width of 24 ft. or thereabouts through the lands being sold to facilitate access for future development of the vendor's retained lands and such roadway is to be constructed to the specifications of Meath County Council and is to be brought up to the boundary of the vendor's retained lands."
Special condition 7 provided as follows:
"The Purchaser hereby grants to the Vendors Licensees their Executors, Administrators, Assigns and Trustees the right to pass and re-pass over the distributor road to be constructed by the Purchaser and the further right to pass and re-pass by day or by night on foot or in vehicles over all estate roads to be constructed on the land being sold for the purpose of gaining access to the vendor's retained lands and the future development of the said lands."
In special condition 8 the purchaser granted the vendor and his successors in title a way-leave for services to and from the retained lands through the utilities then or at any time within the perpetuity period under or passing through sold lands with the usual right to connect up with and to cleanse, repair and renew the utilities. Special condition 8 also contained a provision, which might more sensibly have been included in special condition 6, which provided that, in the event of the purchaser failing to construct the distributor road within the period of six months of obtaining planning permission or not constructing the same to the satisfaction of the County Council, the vendor should have the right to carry out works to complete the road to the level and standard required by Meath County Council.
In special condition 9 the purchaser covenanted to bring all main services, to include main sewerage, water, gas, ESB and surface water, to the retained lands free of charge to the vendor and his successors in title for both domestic and development purposes.
In special condition 10, which at the hearing was raised by counsel for the plaintiff as being relevant, the purchaser agreed to furnish to the vendor copies of the plans submitted to Meath County Council to support his planning application. The submission of that planning application post-dated the contracts, but pre-dated the transfers of the sold lands to the defendants.
McAlinden Gallagher, Solicitors, acted for the vendor in the sales and Owen O'Brien & Company, Solicitors, acted for the purchaser. Contracts were furnished on 15th August, 2002. In a letter dated 20th August, 2002, which dealt with various issues, the purchaser's solicitors enquired whether it was possible to delineate the distributor road referred to in special condition 6 at that stage or whether the same would be dictated by the planning application, suggesting that, if it was possible to do so at that stage, a map should be prepared to reflect the route of the roadway for inclusion in the contract. The vendor's solicitors' response, by letter dated 22nd August, 2002, was to the effect that they had left the actual location of the distributor road at large lest it interfere with the planning application which the purchaser intended to make to Meath County Council. The vendor's solicitors emphasised that the essential point of special condition 6 was that the purchaser agreed to grant a legal right to the vendor -
"… to pass over a roadway of a certain width to enable our Client to get access to the property at the rear and also to facilitate entry should she intend to develop the retained lands at some stage in the future."
In response, by letter dated 5th September, 2002 the purchaser's solicitors stated that they noted the access required by the vendor and it was agreed to. It is clear from a letter dated 2nd September, 2002 from the vendor's solicitors to the purchaser's solicitors, that the vendor's solicitors were aware that the existing access to the lands registered on folio 17975 was a public road and was in charge of Meath County Council, that the continuation of the road northwards was owned by a neighbouring builder, McCabe, and that it was a private road.
The two transfers by the vendor to the defendants were simple transfers of the parts of the lands registered on folio 17975 comprised in the two contracts (i.e. the sold lands). The content of special conditions 6 to 9 was not addressed in the transfers and no easements or way leaves, as provided for in those special conditions, were reserved in favour of the vendor and his successors in title.
The defendants' application for planning permission to the planning authority, Meath County Council, was dated 4th December, 2002 and sought planning permission for the construction of thirteen houses on a portion of the lands being purchased by the defendants which comprised just short of 2.5 acres, the area in question being on the southernmost portion of the sold lands, so that it involved the demolition of the farmhouse and outbuildings. The planning...
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O'Regan v Carey
...see, for example, the judgments of Laffoy J. in Conneran v Corbett & Sons Limited [2004] IEHC 389 and Geraghty v Quinn & Ors [2008] IEHC 166. 76 The fact that this argument is being made does tend to offer support for the defendants' contention, upon which I will not otherwise comment, that......