A company of businessman Jim Kennedy has won a High Court action over a €5.8 million claim over land in south Dublin owned by his company.
Maireád Smith, and her late husband, Thomas Kevin Smith, of Priorsland House, Brennanstown, Carrickmines, claimed a 1947 legal restriction on building, known as a restrictive covenant, meant they were entitled to a benefit from adjoining land owned by Jackson Way Properties Ltd..
JWPL was awarded €12.8 million as part of a compulsory purchase process over land adjoining Priorsland which was required as part of the M50 motorway which has since been built. The Smiths claimed the €12.8 million valuation was affected by their claim to the covenant entitlement.
JWPL brought proceedings against the Smiths claiming the covenant was no longer of benefit to them because it was no longer valid or that they had no entitlement to enforce it.
On Friday, Mr Justice David Keane found no persons were entitled to the benefit of the covenant. He also found the covenant was not annexed to any land, either expressly, or by implication.
The judge, outlining the history of the property, said in 1942, stockbroker Thomas Vincent Murphy acquired Priorsland House, a mansion which included stables and 16 acres. He subsequently acquired 127 acres of adjoining land which formed part of the Hinchougue House estate.
In 1947, Mr Murphy transferred 108 acres of the land to another stockbroker, John Hugh Wilson. This was when the covenant was created.
Verbally agreed
In 1962, Mr Murphy and Mr Wilson agreed to a modification of the covenant to allow Mr Murphy build a house on part of the lands, the judge said.
In an affidavit in 1962, Mr Murphy swore that at the time of the sale of the land to Mr Wilson in 1947, it was verbally agreed between the two men that a covenant which restricts all buildings on the lands be inserted into the deed. The purpose was to preserve the amenity and privacy of Priorsland, he said.
In 1992, after the property had passed through several hands over previous years, a company called Paisley Park became the owner. That company later went into liquidation and the land was transferred to JWPL in 1994.
After JWPL got its €12.8 million award, it had to issue proceedings against Dún Laoghaire-Rathdown County Council seeking enforcement of that award which was when the covenant issue arose.
The Smiths, in 2009, lodged a compensation claim with the council saying their interest in the land, which had been compulsorily acquired, was €5.8 million, due to the covenant.
JWPL then brought proceedings against the Smiths seeking to have the covenant declared invalid. The Smiths opposed the application.
Mr Justice Keane concluded it was not possible to establish the benefit of the covenant, contained in the 1947 deed and modified in 1962, was annexed by implication to any land. He also concluded the benefit of the covenant had not been annexed to the Smith lands by operation of the 1881 Conveyancing Act.
It was unnecessary to consider whether various contingent issues, including whether there was a material change to the character of the land in the neighbourhood, or whether some action on the part of the Smiths would otherwise affect the validity of the covenant, he said.
He adjourned the question of what orders should be made, plus costs, to next month.