Zopitar Ltd -v- Jacob [2017] IECA 183 (20 June 2017)

Zopitar Ltd -v- Jacob [2017] IECA 183 (20 June 2017)

The Court held that the use of the factory premises by Ruth McKinney and her father was tolerated and neighbourly, not 'as of right', but precario, and thus did not satisfy the requirements for acquisition of a prescriptive right of way under section 2 of the Prescription Act 1832. There was no evidence of assertion of a right, nor was the use brought to the attention of the servient owner as a claim of right; the arrangements were reciprocal and based on familial and neighbourly relations, not legal entitlement.

Citation
[2017] IECA 183
Parties
Plaintiff/respondent: Zopitar Limited; Defendant/appellant: Harold Jacob, administrator ad litem of the estate of the late Ruth McKinney
Jurisdiction
Ireland
Judgment Date
20 June 2017
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Right of Way, Prescription, Nec Precario, Easement Acquisition
Property Law Easements Right of Way Prescription Nec Precario Easement Acquisition

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Parties

Zopitar Limited

Plaintiff/respondent

Harold Jacob, administrator ad litem of the estate of the late Ruth McKinney

Defendant/appellant

Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether a right of way was acquired by prescription over factory premises in favour of Oatfield Bungalow
  2. 2 Whether the user was 'as of right' and satisfied the requirements of nec vi, nec clam, nec precario

Ratio Decidendi

The Court held that the use of the factory premises by Ruth McKinney and her father was tolerated and neighbourly, not 'as of right', but precario, and thus did not satisfy the requirements for acquisition of a prescriptive right of way under section 2 of the Prescription Act 1832. There was no evidence of assertion of a right, nor was the use brought to the attention of the servient owner as a claim of right; the arrangements were reciprocal and based on familial and neighbourly relations, not legal entitlement.

Court Disposition

Appeal dismissed

Orders

  • No right of way established over factory premises in favour of Oatfield Bungalow
  • No easement or quasi-easement exists as claimed by the defendant/appellant