Jackson way Properties Ltd v Smith
| Jurisdiction | Ireland |
| Judge | Mr. Justice David Keane |
| Judgment Date | 16 February 2018 |
| Neutral Citation | [2018] IEHC 115 |
| Docket Number | [2010 No. 2379P] |
| Court | High Court |
| Date | 16 February 2018 |
[2018] IEHC 115
THE HIGH COURT
Keane J.
[2010 No. 2379P]
AND
Land and Conveyancing – Land and Conveyancing Reform Act 2009 – S. 58 of the Conveyancing Act 1881 – Restrictive covenant of freehold land – Deed of transfer – Statutory annexation
Facts: The plaintiff sought an order pursuant to s. 50 of the Land and Conveyancing Reform Act 2009 for discharging the covenant entered into between the plaintiff and the defendants. The defendants claimed that the said covenant was still enforceable and valid. The issue pertained to the nature and interpretation of the restrictive covenant of freehold lands.
Mr. Justice David Keane concluded that the benefit of a covenant in the prior deed entered into between the original seller and the purchaser of the disputed lands had not been annexed to the defendants' lands by the operation of the law under s. 58 of the Conveyancing Act 1881. The Court observed that there was no benefit for the plaintiff to seek the declarations that it had intended to seek on ground of delay. The Court adjourned the matter in order to make a suitable declaration after hearing the parties in the present case.
This plenary action concerns a dispute between neighbouring landowners about the continuing validity and effect of a restrictive covenant – specifically, a covenant not to build - that was created in 1947.
The plaintiff, Jackson Way Properties Limited (“Jackson Way”), seeks various declarations that would, if granted, establish that the covenant is of no benefit to the defendants, Thomas Kevin Smith and Mairead Smith (“the Smiths”), either because it is no longer valid or because they have no entitlement to enforce it. Alternatively, Jackson Way seeks an order pursuant to s. 50 of the Land and Conveyancing Reform Act 2009 (“the Act of 2009”), discharging the covenant in whole or in part, or modifying it so that it no longer affects the development or use of the lands concerned. Finally, Jackson Way seeks damages against the Smiths, although that claim was not pursued at trial.
In their defence, the Smiths plead that the covenant remains valid; that their lands are entitled to the benefit of it; that Jackson Way's claim to the contrary cannot be maintained in equity; either that s. 50 of the Act of 2009 has no application to the covenant at issue or that Jackson Way has no entitlement in the circumstances to maintain an application under that provision; and that, if the Act of 2009 applies and Jackson Way is entitled to maintain an application under it, the Smiths are entitled to an appropriate level of compensation. The Smiths counterclaim for a declaration that the covenant is, and at all material times was, valid and that they were entitled to the benefit of it.
The covenant is contained in a deed of transfer dated 2 June 1947 (“the 1947 deed”) by which Thomas Vincent Murphy transferred to John Hugh Wilson in fee simple part of the lands at Carrickmines, County Dublin, described in Land Registry Folio DN1849, while retaining the remaining lands in that folio. In material part, the deed of transfer states:
“AND the said John Hugh Wilson hereby also covenants with the said Thomas Vincent Murphy his heirs executors administrators and assigns that he the said Hugh Wilson his heirs executors administrators and assigns will not at any time hereafter erect any building on the said lands.”
Jackson Way now holds the title to the lands that were conveyed to Mr Wilson. The Smiths hold the title to two small portions of the retained lands, both of which now form part of the lands surrounding their family home, known as Priorsland.
In 1942, Mr Murphy, a stockbroker, acquired the unregistered title to the mansion house known as Priorsland House, together with the appurtenant yard, stables, out offices, pleasure grounds and meadow lands, at Brennanstown, Carrickmines, County Dublin, comprising just over 16 acres (“Priorsland”).
Mr Murphy subsequently acquired the lands in Folio DN1849, comprising just over 127 acres of farmland that had formed part of the Hinchogue House Estate, by a transfer that was registered on 15 February 1944. Those lands are located immediately to the south of Priorsland.
As already noted, under the 1947 deed, Mr Murphy transferred just over 108 acres of the lands contained in Folio DN1849 to Mr Wilson, also a stockbroker. The transferred lands were registered as Folio DN4940. The 1947 deed was registered as a burden on that folio, under the designation Instrument No. 275/6/47. The remaining 18 acres in Folio DN1849 were retained by Mr Murphy who, in 1956, transferred them to a property holding company named the Bedford Company for property management purposes.
It seems that, in early 1962, Mr Murphy and Mr Wilson agreed to a modification of the covenant to allow Mr Murphy to construct a substantial dwelling house on part of the lands in Folio DN4940.
On 31 January 1962, Mr Wilson's solicitors wrote to the Chief Clerk in the Land Registry stating:
“We refer to our recent interview with the Senior Legal Assistant in connection with the covenant restrictive of building which is registered as a burden against the lands registered on the above folio.
The covenant was contained in the Transfer Deed dated 2nd June 1947 on the purchase of the above registered owner from Mr. Thomas Vincent Murphy. Mr Murphy has now agreed that this covenant be modified to allow the erection of a private dwellinghouse at a cost of not less than £6,000 on portion of the property to be identified by reference to the Official Land Registry map, and we have now ascertained that Mr. Murphy has not since sold any of his lands at Carrickmines which he owned at the date of the sale to Mr Wilson.
In these circumstances we would be much obliged if you could let us know if the Registrar would be prepared to modify this covenant on lodgement of an affidavit by Mr. Murphy verifying that he has not sold any of his adjoining lands and on lodgement of a Deed of Modification of Covenant duly executed.”
Mr Wilson's solicitors wrote again to the Chief Clerk on 7 February 1962, stating:
“[W]e beg to confirm that we have ascertained from Mr. Thomas Vincent Murphy's Solicitors that in the year 1956 Mr. Murphy formed a Company, namely Bedford Co. Ltd. to hold all his property at Carrickmines. We understand that all Mr. Murphy's property was then transferred to Bedford Co. Ltd. And that the Company is accordingly the proper body to agree to the modification of any covenant. We are informed that they will be agreeable to do this in the manner indicated.”
The Deputy Registrar prepared a note in response. It states:
“In this case it is not clear whether the covenant is a personal covenant; and enforceable by Mr. Murphy the former owner of the lands in folio 1849, Dublin; or a restrictive covenant enforceable by him and his successors as such owners.
However, whether it is or not, I do not think that Section 45 (3) [of the Local Registration of Title (Ireland) Act, 1891] prevents me from accepting a release from the covenantee and the present registered owner. In this regard, if Rule 108 of the Land Registration Rules, 1946, appears to prevent such cancellation, I think I may safely relax this regulation under Rule 210 of the same Rules.
If evidence is produced either that this covenant is personal; or if it is annexed to the land in folio 1849, Dublin, that Mr Murphy or the present registered owner have ( sic), in fact, no other land to which it was to be annexed and further that there is no building scheme involved; a Deed from Mr. Murphy and the Bedford Company modifying the covenant will be accepted.
The entry of the Deed should be noted at entry 4 of folio 4240 as follows:-
‘The covenant at entry No. 3 had been modified to the extent specified in Instr….’”
Thomas Vincent Murphy swore an affidavit on 6 March 1962. In it he averred as follows:
“1) By Deed of Transfer dated 2nd June 1947 and made between myself of the one party and John Hugh Wilson of the other part the land now registered in Folio 4940 of the register County Dublin was transferred by me to the said John Hugh Wilson.
2) No formal Contract was entered into at the time of the said Sale, but it was verbally agreed that a covenant restrictive of all building on the lands sold be inserted in the Deed.
3) The sole purpose of this restrictive covenant was to preserve the amenities of my residence at Priorsland, Carrickmines and to ensure privacy for me and my family in the enjoyment of said residence and the lands adjoining it which were retained by me.
4) There has never been, nor is there now, any building scheme contemplated for the lands sold or retained by me, save the erection of one private dwellinghouse.
5) In the year 1956 I transferred all my property at Carrickmines to a holding company namely the Bedford Company. No other dealings with the property have taken place since 1947 and the Bedford Company are still the owners of the property which I transferred to them.
6) I have not transferred any of the property which I owned at the date of the said deed dated 2nd June 1947 to any persons other than the said transfer of all my said property to the Bedford Company.
7) I am agreeable to the said John Hugh Wilson applying for the modification of the covenant restrictive of building in accordance with the Deed lodged herewith.”
The Bedford Company, Thomas Vincent Murphy, and John Hugh Wilson made a deed of indenture on 13 March 1962, agreeing both the modification of the covenant to permit the construction of the proposed...
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