Keelgrove Properties Ltd v Shelbourne Development Ltd

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Gilligan
Docket Number[2003 No.
Date08 July 2005

[2005] IEHC 238

THE HIGH COURT

[No. 6598P/2003]
KEELGROVE PROPERTIES LTD v SHELBOURNE DEVELOPMENT LTD

BETWEEN

KEELGROVE PROPERTIES LIMITED
PLAINTIFF

AND

SHELBOURNE DEVELOPMENT LIMITED
DEFENDANTS

STATUTE OF LIMITATIONS ACT 1957 S13(2)

STATUTE OF LIMITATIONS ACT 1957 S14(1)

STATUTE OF LIMITATIONS ACT 1957 S18

STATUTE OF LIMITATIONS ACT 1957 S24

STATUTE OF LIMITATIONS ACT 1957 S50

STATUTE OF LIMITATIONS ACT 1957 S51(1)

STATUTE OF LIMITATIONS ACT 1957 S58

MURPHY v MURPHY 1980 IR 183

DOYLE v O'NEILL UNREP O'HANLON 13.1.1995 1995/2/421

LEIGH v JACK 1879 5 EX D 264

WALLIS v SHELL-MEX 1975 QB 94

GRAY v WYKEHAM-MARTIN UNREP GOULDING 17.1.77

UKPOWELL v MCFARLANE 1977 P & C R 452

LAND LAW

Adverse possession

Intention to exclude true owner - Adversepossession to be of definite and positivecharacter - Murphy v Murphy [1980] IR 183;Doyle v O'Neill (Unrep, O'Hanlon J,13/1/1995); Hughes v Griffin [1969] 1 WLR23; Treloar v Nute [1976] 1 WLR 1295; LordAdvocate v Lord Lovat (1880) 5 App Cas273; Leigh v Jack (1879) 5 Ex D 264;Wallis's Holiday Camp v Shell-Mex [1975]QB 94; Gray v Wykeham-Martin (Unrep,English CA, Goulding J, 17/11/1977) andPowell v McFarlane (1979) P & CR 452applied - Statute of Limitations 1957 (No 6),ss 13 and 18 - Plaintiff granted declaration ofownership (2003/6598P - Gilligan J -8/7/2005) [2006] IEHC 238

Keelgrove Properties Ltd v Shelbourne Development Ltd

1

JUDGMENT of Mr. Justice Gilligan delivered the 8th day of July, 2005.

2

These proceedings were commenced by way of a plenary summons as issued on 30th May, 2003 and relate to a plot of ground which formerly was the site of No. 30 Moore Street Dublin 1. Both parties to these proceedings are property developers and it is not disputed that by an indenture of assignment made 30th July, 1997 between A. Brazil Limited of the one part and the plaintiff of the other part the property No. 30 Moore Street in the City of Dublin was assigned to the plaintiff for the unexpired residue of the term of the lease which said interest was an interest in possession.

3

The issue that arises in this matter is that the defendant maintains that it and its predecessors in title have for upwards of 12 years prior to the commencement of these proceedings been in undisturbed possession of the lands and premises known as No. 30 Moore Street in the City of Dublin to the exclusion of the plaintiff and have continuously over a period in excess of 12 years exercised all the rights of an owner over the lands and accordingly the plaintiffs title to the lands was by virtue of the statue of the Limitations Act, 1957 (as amended) barred and extinguished prior to the commencement of these proceedings and/or prior to the acts complained of in these proceedings and claim a declaration that it is and was at all material times the owner of the lands and has acquired title thereto by adverse possession and that the plaintiff has no estate title right or interest in the lands in question.

4

The background to these proceedings relates to lands at the junction of Parnell Street with Moore Street in the City of Dublin. The Sullivan family originally owned No. 59 Parnell Street which ran through to O'Rahilly Parade and was a butchers with an abattoir at the rear with access from 16 O'Rahilly Parade, No. 58 Parnell Street was run as a shoe shop and a bed and breakfast and 30A Moore Street was a shop which dealt in leather goods. No. 30 Moore Street was originally O'Connors Poultry Shop and No. 29 adjacent thereto was a pork butchers.

5

At some time in the 1970s Dublin Corporation intimated that they wished to widen Parnell Street and in or about 1983 agreements were entered into in respect of certain buildings at 30A Moore Street and 58 and 59 Parnell Street, which was the subject matter of compulsory purchase orders. Subsequently the houses on these sites were demolished in or around 1983. In or about 1986 No. 30 Moore Street was demolished by the Dangerous Buildings Section of Dublin Corporation. Mr. Daniel Sullivan began operating a car park on what was initially 58/59 Parnell Street and 30A Moore Street being in effect the corner between the two streets and subsequent to the demolition of No. 30 also began to use the levelled site as part of his car park. Dublin Corporation also were using sites along side No. 59 stretching back up Parnell Street for car parking purposes and Irish car parks had an arrangement with Dublin Corporation whereby they ran the car park. The ongoing situation from approximately 1986 was that Mr. Sullivan was using what was left of the sites of 58 and 59 Parnell Street and 30A and 30 Moore Street for parking approximately 14 cars and Irish Cark Parks by arrangement with Dublin Corporation had an extensive car park adjacent thereto. In or about 1985/86 a timber fence was erected by Dublin Corporation and apparently the fencing went all the way down Parnell Street and round and down Moore Street leaving an entrance to the car parking facilities at or about what had formerly being the site of No. 30A Moore Street. Subsequently when this fence was falling apart it was replaced in or about November of 1996 by Dublin Corporation. By November of 1989 Mr. Sullivan had a number of lads working in the car park for him. He was not paying any rent for the property and he paid the rates when they came due and also public liability insurance to cover everyone's property. In essence Mr. Sullivan ran a car park on the site as referred to through until 1997 and he had the key to the gate of the car park. Mr. Sullivan sold his interest in the rear of 59 Parnell Street to Shelbourne Developments on 30th June, 1997 and handed over the key to his own solicitor to be passed over to the purchasers and after June 1997 he had no further involvement, with the area in question.

6

Mr. Tom Brazil though a Company A. Brazil Limited had previously purchased the interest of the former owner in No. 30 Moore Street and he was well known to Mr. Sullivan and in the late 1980s there was already considerable interest with relation to the development of the area and Mr. Sullivan wrote on 17th May, 1989 to Dublin Corporation Per Pro inter alia Mr. Tom Brazil showing the extent of Mr. Sullivan's interest in what was left of No. 59 Parnell Street and inter alia Mr. Tom Brazil's interest in No. 30 and indicating that if agreement could be reached with Mr. Tom Brazil and Dublin Corporation various properties could be put up as one unit for sale. As Mr. Sullivan was using the site of No. 30 for his car park arrangements at this stage he wrote to Mr. Tom Brazil that he acknowledged that he had no claim over his property at 30 Moore Street formerly known as O'Connors which acknowledgement he signed and dated 8th June, 1989.

7

Mr. Sullivan confirms there was a yellow hut which was operated by Irish Car Parks and each played along with the other in circumstances where he was parking approximately 14 cars and Irish Car Parks were taking the rest of the cars on the ground beyond No. 59 Parnell Street. Dublin Corporation gave Mr. Sullivan permission to pass over what had been 30A Moore Street for the purpose of utilising his car park and this was also the entrance to the ICP Car Park. Mr. Sullivan asked the owners of No. 60, Sepia, for permission, which was granted, to use their ground. He also asked Dublin Corporation for permission to utilise their property which would have included at that stage some portion of what previously had been No. 58 Parnell Street. Mr. Sullivan confirmed that he never had any claim against the owners of the property that he was using for the car park and that in particular in respect of No. 30 he says that he was never objecting or never standing in Mr. Brazil's way and the same went with all the other properties. Mr. Sullivan accepts that he asked for and was granted Mr. Brazil's permission to go on to his property and specifically stated "well I would not go on to another person's property without him giving me permission". Mr. Sullivan accepted that if Mr. Brazil wanted to sell his property he would not be standing in his way and there would be no point in him trying to block the sale because they were all friends and together they were negotiating with anyone who was interested. Mr. Sullivan agrees that whatever car parking was going on there was no question of him dispossessing Mr. Brazil no more than he was attempting to dispossess any of the adjoining owners whose lands he was using as a car park. Mr. Sullivan accepts that the purpose of his writing to Mr. Brazil to confirm that he had no claim over his property was so that they would not end up in court against each other in ten years time and he states that they would not have gone on like that in any event. Mr. Sullivan accepted that in 1989 they were all trying to put together a block of property on a smaller scale than was eventually achieved by the defendant and they were all agreeable in those days to sell. He accepts that they were trying if anyone was interested to sell as many properties together. Mr. Sullivan remembered meeting Mr. Cunningham of the plaintiff company and at the time he was attempting to put together a block of properties and he had a number of provisional deals around the block and the property Mr. Sullivan had for sale was No. 59 backing to O'Rahilly Parade and there was no question of Mr. Sullivan selling 30A as that belonged to Dublin Corporation, No. 60 which belonged to Sepia, or No. 30 that belonged to Mr. Brazil. Mr. Sullivan accepted that is the situation which continued on through until Mr. Sullivan sold his property in 1997. During the period 1989 – 1997 there were a series of meetings between the local neighbours including Mr. Sullivan and Mr. Brazil in the Royal Dublin Hotel and the Gresham Hotel and these meetings were amongst themselves...

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