Persian Properties Ltd v Registrar of Titles
| Jurisdiction | Ireland |
| Judge | Keane CJ. |
| Judgment Date | 20 February 2003 |
| Neutral Citation | [2003] IESC 12 |
| Court | Supreme Court |
| Docket Number | [S.C. No. 100 of 2001] |
| Date | 20 February 2003 |
[2003] IESC 12
THE SUPREME COURT
Keane C.J.
Murray J.
Hardiman J.
Geoghegan J.
Fennelly J.
BETWEEN
AND
Citations:
REGISTRATION OF TITLE ACT 1964 S12(1)
REGISTRATION OF TITLE ACT 1964 S85
BOYLE V CONNAUGHTON UNREP LAFFOY 21.3.2000 2000/2/735
REGISTRATION OF TITLE ACT 1964 S120
REGISTRATION OF TITLE ACT 1964 S31(1)
REGISTRATION OF TITLE ACT 1964 S120(2)
REGISTRATION OF TITLE ACT 1964 S72
LOCAL REGISTRATION OF TITLE ACT V PATTERSON, RE 3 NIJR 90
MCALLISTER REGISTRATION OF TITLE 1973 300
REGISTRATION OF TITLE ACT 1964 S32(1)
LAND REGISTRATION ACT 1925 S83(5)(C)(UK)
SERRIDGE PROVINCIAL BANK V TRUSTEES OF INSURANCE FUND, RE 1926 IR 169
LOCAL REGISTRATION OF TITLE (IRL) ACT 1891
MCMANUS V KIERNAN 1939 IR 297
Synopsis:
LAND LAW
Registration of title
Land registry - Folio map omission - Application to land registry for compensation - Leasehold - Fee simple - Liability for damages - Value of land decreased - Methodology of calculating damages - Whether land registry liable for error - Whether plaintiff entitled to recover costs of defending legal proceedings without consent of defendant - Registration of Title Act, 1964, sections 85, 120 (100/2001 - Supreme Court - 20/2/2003)
Persian Properties Ltd v Registrar of Titles - [2003] 1 IR 450
section 120 of the Registration of Title Act, 1964 requires compensation to be paid to persons sustaining a loss due to an error in registration of property titles. The plaintiff unsuccessfully defended High Court proceedings taken by a third party who claimed to be the owner of a disputed strip of land which had been incorrectly registered by the defendant. The plaintiff submitted that the defendant should be responsible under section 120 of the Act of 1964 for the costs of defending those proceedings. The High Court (Carroll J) awarded the plaintiff £10,000 for the value of the disputed strip which had been incorrectly registered and the costs of the High Court proceedings between the third party and the plaintiff before McCracken J. The defendant appealed the decision to award the plaintiff the costs of the prior High Court proceedings.
Held by Keane CJ, delivering the judgment of the court, in allowing the appeal, that the plaintiff was entitled to rely on the description on the Register and complete the transaction as it did but was not obliged to resist the claim of the third party before applying to the defendants for compensation. Moreover, it would be unjust and unreasonable to require the defendant to bear the costs involved in the prior High Court proceedings brought by the third party when they had been given no indication by the plaintiff of its intention to resist them.
JUDGMENT delivered the 20th day of February. 2003, by Keane CJ. [NEM DISS]
This case involves a plot of land no more than 116 square feet in area. The ownership of the plot has, however, led to two sets of proceedings in the High Court, one of which lasted for several days, and an appeal to this court. To some extent, this is explained by the fact that the plot which caused all the difficulty is in a prominent position in the city of Dublin, i.e., beside what was formerly the Merrion Hall and is now the Davenport Hotel in Lower Merrion Street and was of some strategic importance in the development which culminated in the conversion of Merrion Hall into the hotel.
The proceedings which were the subject of the appeal to this court took the form of an application by the respondents/plaintiffs (hereafter "the developers") for compensation pursuant to S.12(1) of the Registration of Title Act 1964(hereafter "the 1964 Act"). The first named appellant/respondent (hereafter "the Registrar") made an adjudication and order on the 26 th July 1999 dismissing the claim. There followed an appeal by the developers to the High Court which was heard by Ms. Justice Carroll who, on the 14 thFebruary 2001, allowed the appeal. From that judgment and order, the Registrar and the Minister for Finance have appealed to this court.
The facts are set out with customary clarity by the learned High Court judge in her judgment. There is an entrance between the side of the Davenport Hotel and the rear of the house and garden at No. 1 Merrion Square. It is a bottleneck entrance: there is a strip measuring approximately 22 feet in length and 5 feet in width at the rear of No. 1 Merrion Square and a corresponding strip on the Davenport Hotel side. After 22 feet approximately the entrance widens out to 15 feet.
The title position is as follows. The Commissioners for Public Works in Ireland had acquired the leasehold interest in No. 3 Merrion Square from the Pembroke Estate under lease dated 23 rd March 1931. The lease also included the plot of ground at the rear of No. 1 Merrion Square which is the subject of these proceedings. By conveyance of the 25 th April 1975, the Commissioners acquired the fee simple in the premises from the Pembroke Estate: it was conveyed by reference to the premises comprised in the lease. In accordance with the provisions of the 1964 Act, the Chief State Solicitor applied on behalf of the Commissioners for first registration on 3 rd February 1976, identifying the property comprised in the Conveyance as outlined in red and blue on the map accompanying the application.
That map was inaccurate, in that it reduced the strip at the rear of No. 1 Merrion Square by about 3 feet, although it showed the full width of the strip on the Merrion Hall side. However, the critical error occurred in the Land Registry which eliminated the bottleneck entirely on both sides and showed a passage approximately 15 feet wide from what had previously been the "neck" of the bottle. The title was registered on Folio 8708F, County Dublin.
The Commissioners also acquired the fee simple in No. 2 Merrion Square and their freehold title was registered in a separate folio. The Commissioners transferred the lands in Folio 8708F (including the disputed strip) and No. 2 Merrion Square to a company on the 16 th September 1988 which in turn transferred all those premises to Foleyhurst Limited on the 11 th January 1989. A company called Minoa Limited which wished to erect townhouses and apartments at the rear of No.s 2 and 3 Merrion Square acquired part of Folio 8708F (including the disputed strip) as well as the remainder of the premises. They obtained planning permission for the erection of three townhouses and two apartments at the rear of No.s 2 and 3 Merrion Square.
The developers, as already noted, acquired Merrion Hall with the intention of converting it into what subsequently became the Davenport Hotel. Since they did not wish the townhouse/apartment development contemplated by Minoa Limited to go ahead in close proximity to their new hotel, they also bought the plot at the rear of No. 1 Merrion Square together with the remainder of the premises owned by that company, from them. The sale was closed on 7 th May 1992 and a transfer executed on the 2 nd July 1992.
At the time the developers bought that plot, the leasehold interest in No. 1 Merrion Square was owned by Tomkin Estates Limited (hereafter "Tomkin") under a reversionary lease from the Pembroke Estate dated 1 st March 1955. The premises at the side and to the rear of No. 1 Merrion Square comprised in that lease had at the date of the Tomkin lease been demolished. The auctioneering firm of Morrisseys had built a premises for the carrying on of their business on this cleared site. However, the gable wall of the Morrissey building was approximately 5 feet inside the boundary as shown on the lease. There was a screen wall extending approximately 5 feet at right angles to the gable wall with a pedestrian entrance and an arch a short distance in from the entry to the laneway. The rest of the laneway was closed off by substantial gates at night time. Beyond the screen wall the laneway opened out to 15 feet. The screen wall and pedestrian entrance is shown in the map lodged with the application for planning permission and they are also visible in a photograph taken before the hotel development began. That photograph also shows a car parked on the portion inside the boundary of the Tomkin lease.
On the 8 th May, i.e., the day after the sale to the developers of the property including the disputed strip was closed, the builder of the hotel, Mr. Maguire, demolished the screen wall and pedestrian entrance. A crane was then moved onto the site so that the building work could proceed. On the 15 th May 1992, Tomkin wrote to Mr. Noel O'Callaghan, the person principally concerned with the hotel development, claiming that they were the owners of that part of the entrance where the screen wall and arch had stood by virtue of their lease. (At a later stage, Tomkin acquired the fee simple interest in the premises.) Tomkin then issued proceedings in the High Court in which they claimed to be entitled to the disputed plot. The proceedings were defended by the developers and Mr. O'Callaghan, who was personally sued, and a trial lasting four days ensued before McCracken J. In a written judgment, he found in favour of Tomkin and granted them a declaration that they were the owner of the disputed plot. He also awarded them the costs of the proceedings. The developers then made their application for compensation under the 1964 Act. On the hearing of the appeal from the Registrar's refusal of the application, evidence was given by Mr. O'Callaghan, the solicitor for the developers, Mr. Kelly, the architect of the hotel development, Mr. James O'Connor, the builder, Mr. Maguire, and two valuers on behalf of the developers and the Registrar of Titles.
Mr. Kelly said that,...
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