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Cite as: [1999] IEHC 128, [1999] 2 ILRM 182

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Griffin v. Bleithin [1999] IEHC 128; [1999] 2 ILRM 182 (12th March, 1999)

THE HIGH COURT

THE CIRCUIT COURT ON APPEAL

1997 No. 672 CA

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

BETWEEN

ALICE GRIFFIN (SUING IN HER CAPACITY AS PERSONAL REPRESENTATIVE OF THE LATE JOHN GRIFFIN DECEASED)

PLAINTIFF

AND

MICHAEL BLEITHIN

DEFENDANT

Judgment of Mr. Justice Quirke delivered on the 12th day of March 1999 .

1. This is an Appeal brought by the Defendant, Mr. Michael Bleithin, against the entire of an Order of the Circuit Court (Groarke J.) dated the 11th day of December 1997 whereby the Plaintiff herein was granted certain relief including:-

(1) A permanent injunction restraining the Defendant from entering onto or using a garage or store on premises at the rear of property known as 1-6 Victoria Road, Rathgar in the City of Dublin and requiring the Defendant to remove his property from that premises; and

(2) An Order:-

(a) declaring that the Plaintiff's title to a particular shed on the premises at the same location has been extinguished pursuant to the provisions of Section 24 of the Statute of Limitations, 1957; and

(b) declaring that the Defendant is entitled to a right to pass and repass over a certain area within the Plaintiff's property and to a particular user of that area (for the purposes of servicing a particular shed) on the grounds that he, by virtue of his adverse possession thereof, has barred the Plaintiff's title thereto.

2. It has been quite properly conceded on behalf of the Defendant and agreed between the parties that, subject to the claim of the Defendant herein, the Plaintiff, as personal representative of the late John Griffin deceased, is, by deed of Assignment dated the 1st day of November, 1968 entitled, as beneficial owner thereof, to the entire of the property which is in dispute herein for a term of 900 years from the 1st day of May, 1899 subject to the rent reserved by a lease of that date and to the covenants on the Lessee's part and conditions therein contained but subject also to additional easements or rights of way over a portion thereof in favour of persons or parties not concerned with or involved in these proceedings.

3. It is contended on behalf of the Defendant that since in or about 1967 or 1968 the Defendant has been in exclusive occupation and possession of the lands, premises and hereditaments devised by the said lease dated the 1st day of May, 1899 and assigned to the late John Griffin by the said deed dated the 1st day of November 1968 and that his possession and occupation thereof has at all times been adverse to and wholly inconsistent with the title of the late John Griffin and his successors in title (including the Plaintiff) to that property. Accordingly, the Defendant claims that the Plaintiff's title to the lands and premises in question is statute barred pursuant to Section 13(2) of the Statute of Limitations, 1957 and the Defendant seeks a declaration to the intent that the Plaintiff's title to the said lands has been extinguished pursuant to the provisions of Section 24 of the Statute of Limitations, 1957.

THE FACTS

4. On the evidence adduced at the hearing the following are the facts which are most material to the determination of the issues in this case.

1. The late John Griffin died intestate on 22nd December, 1981 and a Grant of Letters of Administration to his estate issued to the Plaintiff on 29th January, 1992.

2. The proceedings herein were commenced by the issue and service of a Civil Bill herein dated the 7th day of February, 1994.

3. The Defendant went into possession of the yard which is coloured yellow on the map appended to the Civil Bill herein in or around 1968 on foot of a relatively informal agreement made between the Defendant and the late John Griffin (hereinafter referred to as "the deceased") which provided that the Defendant should be entitled to the use of the yard and possibly one of the small sheds (which is coloured blue on the map attached to the Civil Bill) in return for a weekly rental of £8 per week. It was further agreed that the Defendant would have access to and egress from the yard by means of the lane-way which is also coloured yellow on the map annexed to the Civil Bill herein upon which is written "Paved Lane - right of way".

4. Although the deceased sought the rent regularly from the Defendant the latter failed to pay any of the rent due on foot of the agreement and a Notice to Quit dated the 18th day of April, 1974 and signed by the deceased was served upon the Defendant by registered post requiring the Defendant to vacate the yard and shed concerned which was declared by the Notice to Quit to be ".... held by you on a weekly tenancy....".

5. Notwithstanding constant requests made by the deceased and the service of the Notice to Quit, the Defendant did not vacate the yard and shed which he was occupying and after separating from his wife in 1976 he commenced residing in a vehicle within the yard.

6. On the 10th day of January, 1972 a Mr. Michael G. Magee entered into possession of and occupied that portion of the deceased's premises which is coloured red on the map annexed to the Civil Bill herein and therein described as a "large garage" (hereinafter referred to as "the large garage") on foot of an agreement made between Michael Magee of the one part and the deceased of the other part whereby the deceased agreed to let the large garage to Mr. Magee and to a company known as Slumber Sweet Limited of which Mr. Magee was the principal shareholder for purposes connected with the business of Slumber Sweet Limited and at an annual rental of £380. Mr. Magee and Slumber Sweet Limited went into possession of and occupied the large garage on foot of the said agreement and remained in occupation and possession of the large garage until at least August of 1982 when Mr. Magee was required to travel to Australia. It would appear that the tenancy agreement between Mr. Magee and Slumber Sweet Limited of the one part and the deceased of the other part was not formally determined by or between the parties thereto at any time up to the date of the commencement of the proceedings herein.

7. Sometime in 1981 or 1982 the Defendant approached Mr. Magee and indicated that he intended to build up some of the sheds on the side of the yard which was opposite to the large garage and he asked Mr. Magee for the latter's permission to store some of the Defendant's materials within the large garage. Mr. Magee agreed to allow the Defendant to store some materials within the large garage at some point in 1982 but Mr. Magee is quite clear in his recollection that at no time prior to August of 1982 did the Defendant ever seek to establish either office accommodation or residential accommodation or any other kind of accommodation within the large garage and I accept Mr. Magee's recollection in that respect.

8. By Order of the High Court (Murphy J.) dated the 13th day of December, 1982, a Mr. William P. Farrell was given liberty to proceed with the sale of the entire of the lands, premises and hereditaments which are in dispute in the proceedings herein and it is probable that the said Order for Sale represented the final stages of an attempt by the said William P. Farrell to recover monies which he claimed were due and owing to him by the deceased. The said Order expressly declared that the Defendant had failed to attend at the hearing of the application made by William P. Farrell although notified of the nature and extent of the application.

9. At some date which Mr. Magee could not precisely identify he was required on the due dates to pay the rent reserved by the agreement with the deceased for the use of the large garage to the Solicitors (Messrs. A&L Goodbody) who were acting for Mr. William P. Farrell and Mr. Magee made those payments of rent to another firm of Solicitors (Messrs. T.P. Robinson) who in turn passed the rental payments on.

5. Mr. Magee believes (and I accept) that he left the premises in or around 1986 and paid no rent after that date.

10. The Defendant used the yard for the purpose of parking his trucks (and occasionally vintage cars) and for the purpose of maintaining his trucks throughout the 1970's although his driving commitments required him to be absent from the premises for significant periods from time to time.

11. By the Autumn of 1983 the Defendant had been absent from the yard for such a lengthy period of time that it was considered to be derelict and was, on at least one occasion, occupied by other persons and at some point in the Autumn of 1983 Dublin Corporation was required to enter into and onto the yard and to cut up some of the machinery which was present there and to clear the entire of the premises because it was deemed to be a potential health hazard.

12. In 1984 the Defendant approached the Plaintiff and asked her to sell the large garage to him but the Plaintiff refused to consider such a sale and by her Solicitors wrote to the Defendant in 1985 requiring him to vacate the premises.

THE LAW

6. Section 13(2) of the Statute of Limitations, 1957 provides that no action to recover land shall be brought by any person, other than a State authority, after the expiration of 12 years from the date on which the right of action accrued to that person, or to any person through whom he or she claims.

7. The relevant period of limitation in respect of an action by a personal representative of the deceased owner of land seeking recovery of such land in succession to the owner is the period of twelve years which is laid down by Section 13(2) of the Statute of Limitations, 1957 - see Drohan -v- Drohan [1981] I.L.R.M. 473 and Gleeson -v- Feehan and O'Meara [1991] I.L.R.M. 783.

8. Time begins to run against the owner of land only from the date on which a right of action accrues to him or to the person through whom he or she claims. The essential requirement for the running of time is that the land is occupied by someone whose occupation is adverse to that of the owner.

9. Section 18(1) of the Statute of Limitations, 1957 provides that:-

"No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run."

10. It is now well settled that a person claiming adverse possession within the foregoing section must prove animus possidendi on his part.

CONCLUSIONS

11. The Defendant went into possession of the yard and the blue shed in 1967 and 1968 on foot of a valid weekly tenancy and although he paid no rent on foot of his tenancy agreement with the deceased, the tenancy was not terminated until the 26th day of April, 1974 when the time limited by the Notice to Quit dated 18th April, 1974 had expired.

12. Although the Defendant was absent from the yard and the blue shed for significant periods from time to time (notably throughout the latter part of 1983) it is inescapable that he has used the yard which is shown yellow on the map annexed to the Civil Bill herein for the purpose of parking vehicles and I am satisfied on the evidence that he has used the blue shed for storing equipment and for other purposes connected with his various activities between 1974 and the date of the commencement of the proceedings herein.

13. Since 26th April, 1974 the Defendant has had no legal estate, right or title in or to the yard and the blue shed so that it follows that his possession of the yard and of the blue shed has been adverse to the title of the deceased and of the Plaintiff and during that period between April of 1974 and the date of the commencement of the proceedings herein, no acknowledgement has been made of the title of the deceased or of the Plaintiff sufficient for the purposes of Section 58 of the Statute of Limitations, 1957. Furthermore, I am satisfied on the evidence that various acts of user were done by the Defendant in the yard and in and to the blue shed to enable the Defendant to acquire an interest in the yard and in the blue shed and that the acts were done with sufficient animus possidendi by the Defendant to render his possession of that interest adverse to the title of the Plaintiff for the purposes of Section 18 of the Statute of 1957.

14. Section 24 of the Statute of 1957 provides that:-

".....at the expiration of the period fixed by this Act for any person to bring an action to recover land, the title of that person to the land shall be extinguished."

15. It follows that what was extinguished by the end of the limitation period was the title of the Plaintiff to the yard and to the blue shed and the Plaintiff's right to bring an action to recover the yard and the blue shed.

16. It should be noted however that insofar as the Defendant has acquired an interest in the yard and in the blue shed, that interest is subject to any other rights, easements or interests vested in and enjoyed by any other person or persons in and to and over the area coloured yellow on the map annexed to the Civil Bill herein including the right to pass and repass over that area and the right of access to and from the various properties (including the large garage) adjacent to the yard and the blue shed.

17. Insofar as the large garage is concerned the position is altogether different.

18. I am satisfied on the evidence that Mr. Michael Magee and Messrs. Slumber Sweet Limited went into lawful possession and occupation of the large garage in January of 1972 on foot of a tenancy agreement between the deceased of the one part and Mr. Magee and Slumber Sweet Limited of the other part at an annual rental of £380 determinable by either party upon reasonable notice. I am further satisfied that Mr. Michael Magee and Slumber Sweet Limited remained in lawful possession and occupation of the large garage and continued to pay rent in respect of that premises until in or around 1986 although they did not carry out any business activities in the premises between August of 1982 and the date when they discontinued paying rent in 1986.

19. Although the Defendant was permitted to store some equipment within the large shed some time in 1982 and although he began to trespass upon the premises at a later date (probably after Dublin Corporation had cleared the site in the Autumn of 1983) and although he apparently slept on the premises intermittently in the late 80's, I am quite satisfied on the evidence that between January of 1972 and some time in 1986 the large garage was lawfully used and occupied by and on behalf of Mr. Magee and Slumber Sweet Limited who paid to or for the benefit of the deceased and the Plaintiff an annual rent of £380. It follows that insofar as the Defendant was ever in possession or occupation of any part of the large shed between 1972 and 1986 such possession or occupation was not adverse to the title of the deceased and of the Plaintiff.

20. It follows from the foregoing that the Plaintiff, as personal representative of the deceased, is entitled to the deceased's interest in the large garage including the right to pass and repass over the area coloured yellow on the map attached to the Civil Bill herein for the purpose of effecting access to and egress from the large garage and to the benefits of such easements and rights as may be contained within the Deed of Assignment dated the 1st day of November, 1968 insofar as they affect and refer to the large garage subject to the covenants on the lessee's part and conditions therein contained.

21. It follows from all of the foregoing that the Plaintiff is entitled to the relief which she has been granted by the Order of the Circuit Court dated the 11th day of December, 1997 and that the Defendant similarly is entitled to the relief which he has been granted pursuant to the same Order. It follows further that the Defendant's appeal against the said Order must be and is hereby dismissed.