The Court of Appeal has allowed Allied Irish Bank’s appeal in a dispute over access to two unsold apartments at Palaceanne Mills in Enniskeane, County Cork. The bank held a mortgage over the apartments, which the High Court had found it could not access over the development’s common areas, apart from a right-of-way benefiting an adjoining site.
The appeal concerned the effect of a 2009 conveyance of the development’s common areas to Palaceanne Management Limited, and whether the bank had access rights under its mortgage or by implication. The management company had sought declarations that the bank had no rights over the common areas. It also sought, in the alternative, rectification of the conveyance.
The High Court had ruled in 2012 that the bank had no entitlement to use the common areas for access to the apartments. It also found the bank was not obliged to contribute to repair and maintenance costs. The bank appealed those findings.
In the Court of Appeal, the bank argued that the 2009 conveyance excluded the two mortgaged apartments from the property transferred and expressly reserved easements, including rights-of-way and rights relating to services, for the retained property. The management company accepted that the deed had been misinterpreted at the High Court hearing, but argued the bank should be confined to the grounds in its notice of appeal and that the High Court’s legal analysis remained correct.
The Court of Appeal considered the deed despite the new point not appearing in the notice of appeal, describing the circumstances as “extremely unusual” and the deed as materially relevant. It held that the conveyance excluded the two apartments and reserved rights for them. The court said the 2009 deed did not extinguish the bank’s rights under its earlier mortgage, to which the bank was not a party.
The court also concluded that, in the circumstances, a right of way would arise by necessity or implication of law, or under the rule in Wheeldon v Burrows. It said it was unnecessary to rely on those implications, however, because the bank already had a right of way to the apartments before the 2009 deed, and that right was not affected by the conveyance.
The court allowed the bank’s appeal. It did not determine the appeal on costs, which it left for later consideration.