The High Court has ruled that a 2002 land sale to Ronald and Patricia Delaney was not rescinded, rejecting vendor Monica Kiely’s attempt to rely on a contractual rescission clause after a dispute over access to the property.
The special summons asked the court to determine whether Ms Kiely had rescinded the contract under General Condition 18 of the sale terms. Mr Justice John MacMenamin, in a judgment delivered on 14 March 2008, declined the relief sought and held that the sale had not been rescinded in accordance with that condition.
The land at Bettydoyle, Ballyboughal, County Dublin, was sold for €88,000, with completion due by 25 June 2002. The folio described the land as benefiting from a right of way from a nearby road. But a strip between the route and the property had been transferred to Sean and Bernadette Boylan in 1998, without an express reservation of a right of way over it. The court said the transfer affected access, although it did not landlock the property.
The Delaneys’ representative, James Gallagher, said he had been told at the auction that access was available by right of way. The court noted conflicting evidence about whether he had been shown the folio and file plan. After the sale, the purchasers’ solicitors raised the gap in the route and sought compensation. The judgment records that the purchasers were willing to proceed with the purchase at an abated price, with an earlier dispute over compensation ranging from €5,000 to €25,000.
The parties entered an arbitration process, but it was repeatedly delayed. The judgment found that Ms Kiely’s conduct and delay frustrated that process and that her position on whether a right of way existed shifted. She invoked Condition 18 in April 2005, about 33 months after the purchasers had raised the access problem, seeking withdrawal of their objection or rescission and return of the €8,500 deposit.
The judge concluded that the rescission clause had not been exercised reasonably and that Ms Kiely had lost the power to rescind, including because she had previously disputed that a defect existed. He also found that the vendor’s solicitor had shown a very high degree of imprudence in proceeding despite warning signs about access. The judgment treated the access misdescription as an error for which compensation was available under Condition 33, and concluded that the vendor could not use Condition 18 to avoid the contract after the purchasers elected to seek compensation.
The order was limited to the issue in the vendor-and-purchaser summons: the court declined the requested relief and held that the sale had not been rescinded under Condition 18. The judgment did not determine a compensation amount or grant a right of way over the Boylans’ land.