Tracey Enterprises Macadam Ltd v Drury

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy
• Judgment Date: 24 November 2006
• Neutral Citation: [2006] IEHC 381
• Court: High Court
• Docket Number: No. 3273 P/2005
• Date: 24 November 2006

Tracey Enterprises Macadam Ltd v Drury

BETWEEN/

TRACEY ENTERPRISES MACADAM LIMITED

PLAINTIFF

AND

THOMAS DRURY

DEFENDANT

[2006] IEHC 381

No. 3273 P/2005

THE HIGH COURT

LANDLAW: adverse possession

Facts: by a conveyance executed in 1990, the plaintiff claimed that he had acquired title to a plot of land which the defendant asserted that he had acquired title to by virtue of being in adverse possession thereof in the alternative to his claim that the plaintiff had no title to the said disputed plot. The plaintiff instituted proceedings seeking a declaration that he was the owner in fee simple of the plot.

Held by Miss Justice Laffoy in declaring that the disputed plot was and remained in the ownership of the plaintiff that the plaintiff had acquired title in fee simple to the plot by virtue of the 1990 conveyance and that the evidence did not establish that the defendant’s use of the plot constituted possession. As possession had to be considered in every case with reference to its peculiar circumstances, the defendant’s state of mood as evinced by the objective evidence was inconsistent with an intention to exclude all persons other than himself from the plot.

Reporter: P.C.

PLANNING & DEVELOPMENT ACT 2000 S152

STATUTE OF LIMITATIONS ACT 1957 S13(2)

STATUTE OF LIMITATIONS ACT 1957 S18(1)

STATUTE OF LIMITATIONS ACT 1957 S18

MURPHY v MURPHY 1980 IR 183

WALLIS'S CAYTON BAY HOLIDAY CAMP v SHELL-MEX & BP LTD 1975 QB 94

TRELOAR v NUTE 1976 1 WLR 1295

SEAMUS DURACK MANUFACTURING LTD v CONSIDINE 1987 IR 677

LORD ADVOCATE v LORD LOVAT 1880 5 AC 273

KEELGROVE PROPERTIES LTD v SHELBOURNE DEVELOPMENT LTD UNREP GILLIGAN 8.7.2005 2005/33/6923 2005 IEHC 238

DOYLE v O'NEILL UNREP O'HANLON 13/1/1995 1995 2 421

GRIFFIN v BLEITHIN 1999 2 ILRM 182 2000 20 7681

Miss Justice Laffoy

1 The dispute between the plaintiff and the defendant in these proceedings relates to the title to, and entitlement of possession of, a plot of land comprising an area just over half an acre which is situated on the left hand side of the road from Tallaght to Brittas in South County Dublin, which I will refer to as "the disputed plot". While I believe that the disputed plot is situated in the townland of Crooksling, the postal address is Mount Seskin, Brittas, County Dublin. The plaintiff claims to be the owner in fee simple of the disputed plot. The defendant disputes that the plaintiff ever acquired title to the disputed plot and, in the alternative, asserts that he has acquired title by adverse possession thereto.

2 The plaintiff claims to have acquired title in fee simple to the disputed plot by virtue of a conveyance dated 30th September, 2004 from an associated company, Tracey Enterprises Dundrum Limited (Dundrum). There is no issue between the parties as to the devolution of title from Dundrum to the plaintiff. The issue is whether Dundrum ever acquired title to the disputed plot, and, if it did, whether it has been extinguished by reason of the defendant being in adverse possession for the limitation period.

3 The plaintiff claims that Dundrum acquired title by virtue of a conveyance dated 4th July, 1990 made between Lock Heed Builders Limited of the one part and Dundrum of the other part (the 1990 Conveyance). By virtue of that conveyance, Dundrum acquired the lands described in the first schedule thereto as follows:

"… part of the lands of Mount Seskin situate in the Parish of Tallaght, Barony of Upper Cross and County of Dublin being the hereditaments and premises delineated on the map annexed hereto and thereon surrounded by a red verge line and comprising an area of 140.022 hectares or thereabouts being part of the property comprised in the Deed of Conveyance made on 5th day of April, 1979 …"

4 The map on the 1990 Conveyance was drawn in September, 1989 by J.P. Behan, Associates. It was drawn on a scale of 1: 10560 and it did not depict the features which would have appeared on the ordnance survey map, except the road from Tallaght to Brittas. On the basis of a superficial assessment of the map, it would seem to include the disputed plot.

5 The 1990 Conveyance gave effect to an agreement for sale dated 20th March, 1990 between Lock Heed Builders Limited of the one part and Dundrum of the other part (the 1990 Contract). Some interesting features of the 1990 Contract were highlighted by counsel for the defendant. The purchase price was IR£205,000. The deposit paid on execution of the agreement was IR£50,000. The closing date was to be 28 days from the date of the contract. The special conditions provided that Dundrum was deemed to have made all relevant pre-contract enquiries regarding the title of the vendor and to have seen and inspected the physical boundaries and to have been satisfied that the physical boundaries corresponded with the title offered. On that basis, Dundrum agreed that the deposit, which was almost 25% of the purchase price, should be forfeited if it failed to complete on the closing date, even if it alleged that a person was in adverse possession of a portion of the property, or that the boundaries did not match the boundaries set out on the map attached to the contract, which was the same map as eventually was annexed to the 1990 Conveyance, or that the vendor had not furnished title to all of the property in sale. One of the witnesses, Ms. Alison Crawford, a solicitor in the firm of Joynt and Crawford which acted for Dundrum in the purchase, described the sale as a "forced sale", which I understand to mean that the vendor was being forced by its bankers to sell. The provisions of the agreement highlighted by counsel for the defendant were definitely unusual and harsh on Dundrum. While the fact that they were included is highly suggestive of Dundrum being prepared, for whatever reason, to acquire the property, to use a colloquial expression, "warts and all", to infer that whatever, if any, blemishes affected the title related to the disputed plot would be pure conjecture.

6 The conveyance dated 5th April, 1979 (the 1979 Conveyance) referred to in the 1990 Conveyance was made between John Lynham of the first part, James Lynham of the second part, Joseph Nestor of the third part, Barra J. Flynn of the fourth part and Lock Heed Buildings Limited of the fifth part (the 1979 Conveyance). The 1979 Conveyance gave effect to a very substantial transaction: the consideration was £900,000, a very substantial price at that time. The property conveyed was described therein as:

"… part of the lands of Mount Seskin situate in the Parish of Tallaght, Barony of Upper Cross and County of Dublin being the hereditaments and premises delineated on the map or plan annexed to these presents and thereon surrounded by a red verge line including the hereditaments and premises coloured in orange and the hereditaments and premises hatched in blue and yellow."

7 The areas described as being "hatched in blue and yellow" in the 1979 Conveyance correspond to property adjoining the disputed plot to which the defendant has title and the disputed plot. Neither the evidence adduced, nor the documents put in evidence, explain satisfactorily why these areas were distinguished in the 1979 Conveyance. I would surmise that the explanation is to be found in the application lodged in the Land Registry on foot of which the area hatched in blue, i.e. the defendant's property, was subsequently registered. However, I am satisfied that the disputed plot is within the area intended to be conveyed by the 1979 Conveyance.

8 In 1985, probably in the context of the raising of money on the security of the property the subject of the 1979 Conveyance, the identity of the property the subject of the 1979 Conveyance required to be clarified. This was done by Peter Ging, architect, who, in a statutory declaration made on 11th July, 1985, declared that the lands shown coloured red and referred to at "A" on the map annexed to the statutory declaration formed portion of and were wholly comprised within the lands conveyed by the 1979 Conveyance. The parcels in the 1979 Conveyance were quoted in part, excluding the reference therein to the inclusion of the areas coloured orange and hatched in blue and yellow. On the basis of a superficial assessment of that map, it would appear to include the disputed plot. That map, prepared by Mr. Ging in July, 1985, was also annexed to a statutory declaration made on 22nd December, 1986 by Roderick J. Tierney, solicitor, whose firm had acted as solicitors for the executors of Francis Lynham deceased. Mr. Tierney declared that at the date of his death Francis Lynham had been in sole and exclusive possession of the lands of Mount Seskin as depicted on that map.

9 The recitals in the 1979 Conveyance disclosed that under the will of Francis Lynham, his children, James Lynham, John Lynham, Mary Lynham, and Patricia Bridget Lynham became entitled in equal shares as tenants in common to the lands at Mount Seskin, that he died on 12th January, 1947 and that his will was proved on 8th August, 1947. The recitals also disclosed that Joseph Nestor and Barra J. Flynn, two of the vendors in the 1979 conveyance, acquired the respective one-quarter shares of Mary Lynham and Patricia Bridge Lynham by virtue of a conveyance dated 19th March, 1974. By the time of the sale to Dundrum in 1990 that conveyance had been lost, as was disclosed in a special condition in the contract dated 20th March, 1990.

10 Leaving aside speculation about the prescriptive special conditions in the 1990 Contract, and about the reasons for the hatching in yellow and blue on the map on the 1979 Conveyance, the documentary evidence of title adduced by the plaintiff, read on its own, certainly indicates that the plaintiff is the owner in fee simple of the disputed plot.

11 The defendant's evidence was that he acquired...