Smith. -v- Nardone

• Jurisdiction: Ireland
• Judge: White Michael J.
• Judgment Date: 13 July 2009
• Neutral Citation: [2009] IECC 2
• Case Outcome: Approved
• Decision Date: 13 July 2009
• Court: http://justis.com/court/2781,District Court (Ireland)

Neutral Citation Number: [2009] IECC 2

THE CIRCUIT COURT

EASTERN CIRCUIT COUNTY OF KILDARE

Maureen Chaloner Smith

Appellant

-and-

Raymond and Claire Nardone

Respondents.

Judgement delivered the 13th of July 2009, By Judge Michael White.

This is an Appeal from the Decision of Brigid McCaffrey, Registrar of T itles (as Arbitrator) of the 5th day of June, 2007 granting the

right to the Respondents Raymond Nardone and Claire Nardone to ac quire the Fee Simple in the property at Inglewood, Mill Lane,

Leixlip, Co. Kildare. A Notice of Mot ion was issued on t he 16th July, 2007 originally returnable for the 18th Oc tober, 2007. . An outline

of Appeal was f iled by the Appellant, whic h set out the Grounds of Appeal.

The appeal was heard at Naas Circuit Court on the 20th May, 2009. The Court heard sworn evidence from Claire Nardone, Declan

McKeown,Legal Submissions and Judgement was reserved.

TITLE TO THE SUBJECT PROPERTY

The Respondents ac quired the property for va luable consideration by Indenture of Conveyanc e of Fee Farm Grant made on the 25t h

day of August, 2000. The Root of Title was an Indenture of Fe e Farm Grant dat ed the 1st day of February, 1972 and made between

Mary Stewart Lyle of t he One Part and James Mc Laren Smith and Lila Hepburn Smith of the Other Part. T he property was conveyed to

the Respondents subjec t t o the c ovenants in the said Fee Farm Grant.

The Fee Farm Grant of the 1st February, 1972 conveyed a plot of ground c omprising 2 roods and 38 square perches stat ute measure

delineated on a Map at tached to t he said Grant, with a s pecific c ovenant that the Grantees would erec t a bungalow t ype

dwellinghouse.

Paragraph 4 of the said Fe e Farm Grant st ates

“that t he Grantees will not at any time without the licenc e in writing of the Grantor f irst had and obt ained, erec t or

suffer t o be erecte d any buildings on the piece or plot of land hereby granted or make any alt erations or additions

whatsoever in or to the buildings which may be e rect ed pursuant to the foregoing cov enants or with such licence as

aforesaid or make any alter ations in any boundary wall”.

It is common cause that the Appellant is t he Succ essor in Title to t he Grantor of the said Fe e Farm Grant of the 1st day of F ebruary,

1972.

FINDINGS OF FACT

For the purpose of determining the issues bet ween the parties, the Court has to determine issues of fact .

An Bord Pleanala by Planning Register Reference Number 03/419 granted Planning Permission to the Respondents for t he c onstruct ion

of a t errace of three No. 2 bedroom and one No. 3 bedroom dormer dwellings and associated site works at the subjec t property

Inglewood, Mill Lane, Leixlip, Co. Kildare. Construct ion work at the property in respect of these four dwellinghouses commenced on t he

9th April, 2005. The Respondents had not so ught Permission pursuant to t he Fee Farm Grant, to erect these dwe llinghouses. T he

Appellant was an objec tor to the proposed development. At the t ime of t he commencement of the c onstruction work, both the

Appellant and the Respondents we re not aware of the c ovenants set out at Paragraph 4 of the original Fee Farm Grant. Claire

Nardone first became aware of t he problem on the 12th May, 2005 from her then Solicitors Niall O’Brien & Company. The Appellant also

became aware of t he covenant. T here was c ontac t bet ween Claire Nardone and the Appellant both direct ly and through Solicitors, for

the purposes of acquisition of t he the Fe e Simple in the property. There were ot her issues betwe en the parties in respect of their

boundary, which is not relevant to t he matters in issue in this Appeal. Construc tion work on the four new dwellinghouses ceased in or

around the 19th May, 2005. Work continued on the c onstruct ion of a retaining wall, which had t o be finished for safet y reasons.

Subsequently once the Fee Simple could not be ac quired by agreement William Fry, Solicitors f or the Respondents served Not ice of

Intention to ac quire the Fe e Simple on the 20th Oct ober, 2006 pursuant to the provisions of the Landlord & Tenant (Ground Rents)

(No. 2) Act 1978.

In the c orrespondence betwee n the Solicitors f or the parties, and also in correspondence w ith the Land Registry (now t he Property

Registration Authority), there was a serious dispute as t o the condition of t he portion of t he subject property, on which c onstruction

had commenced.

By letter of t he 9th November, 2006 from Matheson Ormsby Prentice, Solicit ors to William Fry, Solicitors it was alleged as f ollows:-

“Last wee k we understand t hat t hese foundat ions were c overed by top soil and we c annot help but feel that was in a

late att empt by your c lient to s uggest thes e lands are now subsidiary and ancillary and fall within the t erms of Section

9(1)(a)”

In a letter of the 9t h May, 2007 from William Fry, Solicitors t o Miss Brigid McCaffrey, Arbitrator, Property Registration Authority it was

state d:-

“Rather than incur the expense of removing t he foundations, t he area of the gar den in question, at t he behest of the

Local Authority bec ause it was low lying and prone t o flooding, was raised slightly and has now been landscaped a nd

planted with shrubs and has been fully rec onstitute d as an integral par t of the garden a s such”.