Judgment: 2014-11-18 · Court archive

High Court rejects Galway homeowner’s adverse possession claim

The court found that roof repairs and insurance by the property’s former owner interrupted the period needed for Michael Flaherty’s claim. It deferred any further orders for submissions from counsel.

High Court · [2014] IEHC 528

Who, what, where, when and why

Who
  • Cyril Dooley
  • Orla Cullinan (Plaintiff)
  • Michael Flaherty (Defendant)
  • Gerard Hogan (Judge)
  • Paul Fitzgerald
What

The court found that roof repairs and insurance by the property’s former owner interrupted the period needed for Michael Flaherty’s claim. It deferred any further orders for submissions from counsel.

Where

Places mentioned in the report

  • 25 Henry Street, Galway
  • Galway
When

Judgment:

Why

Reasons reported in the judgment

The High Court has rejected Michael Flaherty’s claim to have acquired a Galway property through adverse possession, finding that actions by its former owner interrupted the required 12-year period. The judge said he would await further submissions from counsel before deciding what further orders, if any, were appropriate.

The High Court has rejected Michael Flaherty’s claim to have acquired a Galway property through adverse possession, finding that actions by its former owner interrupted the required 12-year period. The judge said he would await further submissions from counsel before deciding what further orders, if any, were appropriate.

The case concerned 25 Henry Street, Galway. Cyril Dooley and Orla Cullinan sought a declaration that they were entitled to vacant possession after buying the property. Flaherty, who had lived there all his life, relied on adverse possession. The plaintiffs’ paper title was not disputed.

Justice Gerard Hogan found that Flaherty’s payment of £5 rent to Paul Fitzgerald in September 1998 acknowledged the owner’s title. On the evidence, the tenancy was probably a weekly tenancy without a written lease. Under section 17(2) of the Statute of Limitations 1957, the tenancy was deemed to end when rent stopped, allowing time to run from then. The earliest the 12-year period could have expired was September 2010.

The judge considered conflicting testimony about rent payments and other events but said he could decide the claim by reference to established facts where possible. He accepted Fitzgerald’s evidence that he insured the property and that repairs were made to its roof after adjoining owners complained about its condition in a letter dated October 13, 2008. Hogan found the repairs were probably carried out after that complaint and before the 12-year period expired. He held that both the repairs and insurance amounted to acts of possession sufficient to interrupt the period, applying the approach in an earlier adverse possession case.

The property was in serious disrepair, with no internal flush toilet or hot water. The judge said its condition did not establish that Flaherty lacked the intention to possess it adversely. He also rejected the plaintiffs’ argument that the property was unsuitable for adverse possession because it was not fit for habitation: Flaherty had derived use and benefit from it as his home.

The judgment addressed the adverse possession claim only. Hogan did not make a final order for vacant possession in the judgment and left any further orders for later submissions. The case had followed earlier sale proceedings and discontinued Circuit Court ejectment proceedings, but those were not the question decided in this judgment.

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