Two buyers were not entitled to cancel a €330,000 contract for an apartment at Beechpark Wood in Leixlip over a dispute about legal access to the development, the High Court has ruled.
Liam Byrnes and Marie Neylon agreed in September 2006 to buy apartment 35 at Beechpark Wood from Meakstown Construction Ltd and paid a €16,000 deposit.
A dispute developed over a strip of land connecting the development to the public road. The apartment site did not itself directly adjoin the public road, and Kildare County Council owned the intervening land.
The buyers argued that an easement contained in a 2003 transfer only permitted the developer to enter the land to construct a road and utilities. They said it did not provide a general right for residents to pass and re-pass between the development and the public road.
Mr Justice Brian McGovern agreed with them on that point. He found that the 2003 easement did not itself grant the general right of way required for access to the apartments.
However, after the buyers served a 28-day completion notice in December 2007, the developer’s solicitors supplied a deed from Kildare County Council expressly granting a right to pass and re-pass over the land on foot and with vehicles.
The buyers argued that the Council could not validly grant that easement without using statutory procedures governing the disposal of local authority land. The court rejected that argument. It held that granting the right of way was not a disposal of land under the Planning and Development Act 2000 or Local Government Act 2001 and could be authorised by a county manager’s order.
The relevant manager’s order had been signed on 20 December 2007 and the deed followed the next day. The judge found this provided sufficient assurance of good and marketable title before the completion notice expired.
The court therefore held that the buyers could not rescind the contract and were not entitled to recover their €16,000 deposit.