Jackson way Properties Ltd v Smith and Others
| Jurisdiction | Ireland |
| Judge | Ms. Justice Máire Whelan |
| Judgment Date | 21 July 2023 |
| Neutral Citation | [2023] IECA 185 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal Number: 2018/188 |
and
[2023] IECA 185
Collins J.
Whelan J.
Noonan J.
Appeal Number: 2018/188
THE COURT OF APPEAL
JUDGMENT of Ms. Justice Máire Whelan delivered on the 21st day of July 2023
. This is an appeal against orders made by Mr. Justice Keane of the 9 th March, 2018 on foot of a judgment delivered on the 16 th February, 2018 wherein he granted a declaration that the burden of a restrictive covenant recited in the said order as specified in the parcels of a deed of transfer of the 2 nd June, 1947 made between Thomas Vincent Murphy (the covenantee) of the one part and John Hugh Wilson (the covenantor) of the other part was not at the date of the said order and had not been as of the 14th June, 2000 (the operative date) annexed to the lands comprised in Folio 4940 of the Register of Freeholders County Dublin (referred to hereafter solely for convenience as “the servient lands”) being the lands now vested in the respondent, Jackson Way Properties Limited (“Jackson Way”). He further granted a declaration that the servient lands were not on the date of the order and had not been as of the operative date bound by or otherwise subject to the said covenant together with a declaration that the appellants, Mr and Mrs Smith (“the Smiths”) were not on the said dates entitled to enforce the said covenant against the servient lands or against the respondent as the registered owner of same. A consequential cost order was made with a stay in respect of execution of same on terms.
. The 14th June 2000 (the operative date) acquires importance since on that date Dun Laoghaire Rathdown County Council (“the Council”), the notice party, caused Notice of Intention to Treat to be served on Jackson Way in respect of a compulsory purchase order of part of the servient lands. If the covenant was validly annexed to or assigned with the dominant lands the appellants may pursue a claim to an interest in the award of the arbitrator said to be the sum of €12,860,700.
. The dispute between the parties has its origins in 1947 when the covenantee, then the owner of certain unregistered lands comprising about 16 acres (Priorsland) and circa 129 acres of registered lands (Folio 1849) in Carrickmines, Co Dublin, sold part (108 acres, 2 roods, 17 perches) of the lands in Folio 1849 to the covenantor. The lands retained by the covenantee after 1947 comprised the entire of Priorsland and the balance of about 20 acres in Folio 1849 (collectively referred to hereafter solely for convenience as “the dominant lands”). By the 1947 instrument in the parcels the covenantor covenanted to “ not at any time hereafter erect any building on the sold lands” but failed to identify the lands (if any) for the benefit of which it was created. It failed to expressly annex the benefit of the restrictive covenant to any lands retained by the covenantee. The parties to this appeal are successors in title to the original covenantor and covenantee.
. The issues in this appeal thus engage the rule in Tulk v Moxhay (1848) 2 Ph. 774 which relates to the enforceability of restrictive covenants over freehold land. The rule was devised by courts of equity and developed over time so that the benefit of a restrictive covenant over freehold land, which at common law was not assignable, could run with the servient lands for the benefit of the dominant land and bind successors in title of the original covenantor. The rule was abolished by s.49 of the Land and Conveyancing Law Act, 2009 in relation to assurances entered into on or after 1 December 2009. Positive and negative covenants are now fully enforceable against successors in title. The 2009 Act, Chapter 4, is not engaged in this instance, however, since the creation of the covenant predates the 2009 statute.
. It is a fundamental principle of land law that a restrictive covenant affecting freehold land created prior to 1 December 2009 can only be enforced by a successor in title to the original covenantee for the benefit of the dominant (retained) lands against either the original covenantor (or their successors in title) on the basis that the successor in title to the original covenantee is entitled to the benefit of the said covenant. To establish such entitlement it must be demonstrated that the benefit of the covenant was either validly annexed to the dominant lands or, if not, that the covenantee's successor in title, the dominant owner, has taken an express assignment of the benefit of the restrictive covenant together with (arguably, part or) all of the dominant lands for the benefit of which it was originally granted by the covenantor. In the instant case no express annexation in the 1947 instrument of the covenant to all or any part of the dominant lands is persuasively contended for as having ever been validly effected. Neither is it established that there has been an express and effective assignment of the benefit of the restrictive covenant to a successor in title of the original covenantee who acquired the dominant lands in 1956.
. A central issue in this appeal is whether annexation of certain covenants created in the deed of 1947 can be implied, on various alternative bases advanced on behalf of the Smiths, in respect of lands now in their beneficial ownership comprising Priorsland and about one third of an acre of Folio 1849 or whether, as Jackson Way contends, the trial judge was correct in reaching his conclusions that the covenant was not annexed to the dominant lands on the operative date and does not bind the servient lands and is not enforceable by the Smiths.
. As alluded to above, the dispute between the parties has its origins in the approval by the Notice Party of the South Eastern Motorway Scheme on 19 October 1998 which necessitated the acquisition of certain lands, including, inter alia, part of the servient lands owned by Jackson Way. As the High Court judgment records, the Council and Jackson Way were unable to reach agreement with regard to the appropriate level of compensation payable in respect of the lands to be compulsorily acquired. The matter was submitted to arbitration and on the 12 th November, 2003 the arbitrator awarded Jackson Way €12,860,700 in respect of the compulsory acquisition of its interest in part of the servient lands subject to the terms as therein specified. The M50 motorway now traverses the lands.
. It was contended by Jackson Way in the context of the compensation claim that whilst the servient lands in Folio 4940 were subject to two burdens registered on Part 3 of the Folio, the first registered on the 5 th June, 1947 by the covenantor John Hugh Wilson with the covenantee “his heirs executors administrators and assigns that he the said Hugh Wilson (sic) his heirs executors administrators and assigns will not at any time erect any building on the property herein.” and a further burden at entry no. 4 registered on the 29 th March, 1962 modifying the 1947 covenant, the burdens created by the said instruments no longer affected the servient lands in Folio 4940.
. Thereafter in December 2009 the Smiths lodged a rival compensation claim with the Council seeking compensation in the sum of €5,850,000 as the asserted value of their interest in the covenant over lands compulsorily acquired. On the 8 th March, 2010 Jackson Way instituted plenary proceedings contending, inter alia, for a declaration that the aforementioned covenants were at all material times personal to the covenantee, the vendor of the lands, and seeking consequential declarations including that the burden of the covenants registered on Part 3 of Folio 4940 were not as of the operative date annexed to any lands retained by Thomas Vincent Murphy in 1947, that the Smiths were not entitled to enforce the said covenant against Jackson Way's lands in Folio 4940 nor were same ever subject to the said covenant. It was asserted that the covenant was at all material times personal to the original vendor Thomas Vincent Murphy. Jackson Way sought declaratory orders that either restrictive covenants affecting the lands in Folio 4940 were of no benefit to the Smiths for various reason. In the alternative it sought an order pursuant to s. 50 of the Land and Conveyancing Law Reform Act, 2009 discharging or modifying the covenant on various grounds as no longer affected the development or use of the lands in Folio 4940.
. Thomas Vincent Murphy (the covenantee) purchased a dwelling house and premises at Priorsland, Carrickmines, County Dublin on the 24 th March, 1942. Said property was described in the said deed as “ALL THAT AND THOSE the mansion house and premises known as Priorsland together with the yard stables out offices garden pleasure grounds and meadowlands thereon to belonging containing in all sixteen acres and two roods… situate at Carrickmines …” The title was unregistered.
. Approximately two years later on the 15 th February, 1944 the covenantee was registered as owner of the lands in Folio 1849 which comprised about 129 acres. At the time same comprised part of Hinchogue Estate. The latter lands were adjacent to the lands at Priorsland he had previously purchased on the 24 th March, 1942. The appellants contend that since February 1944 Priorsland and the lands in Folio 1849 had effectively been treated as one land holding. The maps suggest that both properties were contiguous or adjoining.
. The title to Priorsland was subsequently registered in 1979 in Folios 11237 and 9455 of the Register County Dublin.
. The covenantee effected a sale of part of the lands in Folio 1849 by a disposition of 108a. 2 r. 17...
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Jackson way Properties Ltd v Smith and Others
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