Wednesday 21 February 2018

Next-door neighbours row over four-foot wall measured by ‘compass and ruler’

Judge sends warning to house buyers

Liam Brien was sentenced to eight years imprisonment by Judge Rory McCabe on March 17 2013.
Liam Brien was sentenced to eight years imprisonment by Judge Rory McCabe on March 17 2013.

By Ray Managh

A judge, who spent three days sorting out a boundary dispute between next door neighbours, has warned house buyers of the critical necessity to have experts check out what they are actually purchasing.

Mr Justice Raymond Groarke said former Cork publican Frank Fenton and his wife, Una, had bought at auction a €750,000 house in Dublin’s popular Leeson Street area after a builder friend had used “a compass and ruler” to measure the back garden.

Judge Groarke said it was up to prospective purchasers to satisfy themselves as to such important matters which Mr Fenton had failed to do. His decision to attend the auction seemed to have been rushed but one had to exercise care and caution.

The judge said he would be astonished if an intelligent and successful businessman with the commercial experience of Mr Fenton would not have inquired into such matters as boundaries before buying No 155 Upper Leeson Street, Dublin 4, at a Receiver’s auction.

Mr Fenton had said he owned rental and commercial properties in Cork and London. The court heard he had sold his business and was investing in property.

Judge Groarke said the map used in the sale had not properly outlined the back garden of No 155 and no warranty had been given by the vendor who had specifically refused to identify boundaries.

He was satisfied the vendors had agreed to sell and the plaintiff had agreed to buy the property as outlined to its rear by paint and tape attached to a cone. He did not accept that the Fentons, whose home is at Herons Wood, Carrigaline, Co Cork, had been misled in any way.

The Fentons had sued for trespass the couple who live next door to their Dublin property, Enda and Dorina Clarke, of 156 Upper Leeson Street, who, they alleged, had wrongly built a dividing wall four feet into the Fenton’s back garden at No 155.

Judge Groarke told barrister Kevin D’Arcy, counsel for the Clarkes, that the seller of both properties at the time were entitled to sell them in any way they wished.  They could have sold one property with the entire of the rear of both houses had they wanted to.

He told Stuart Conaty, counsel for the Fentons, that his clients had failed to prove the wall had been built other than on the Clarkes’ own property.

The judge said it had been conceded by the Clarkes that the wall foundation trespassed on the Fentons garden by some inches and directed this be remedied by agreement with architects Frank Kenny, for the Fentons, and Vincent Traynor, for the Clarkes.

Ruling on a counter claim by the Clarkes, Judge Groarke granted them a declaration that their rear garden boundary was as they had claimed in court and that they had been entitled to build the wall.

Mr D’Arcy was granted a single day’s costs for the three-day hearing and all reserved costs with regard to earlier injunctive proceedings which had been taken by the Fentons.

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