O'Shea -v- Butler & Anor [2014] IEHC 399 (28 July 2014)

O'Shea -v- Butler & Anor [2014] IEHC 399 (28 July 2014)

The court approved the sale of the lands for €337,000 and ordered vacant possession because the plaintiff's judgment mortgage was well-charged, the sale price was supported by independent valuation and the priority encumbrancer, and no credible higher offer was available. The pending adverse possession claim by Mr. Kelly did not justify delaying the sale, as it was inconsistent with prior affidavits and not supported by sufficient evidence to warrant a stay.

Citation
[2014] IEHC 399
Parties
Plaintiff: Crohan O'Shea; Defendant: Michael Butler; Defendant: William Butler; Notice Party: William Kelly
Jurisdiction
Ireland
Judgment Date
28 July 2014
Procedural Posture
Special Summons / Motion for Approval of Sale and Possession Order
Outcome
Plaintiff's motions granted
Legal Topics
Judgment Mortgage Enforcement, Order for Sale of Land, Vacant Possession, Priority of Encumbrances, Adverse Possession Claim
Property Law Civil Procedure Enforcement of Judgments Judgment Mortgage Enforcement Order for Sale of Land Vacant Possession Priority of Encumbrances Adverse Possession Claim

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Parties

Crohan O'Shea

Plaintiff

Michael Butler

Defendant

William Butler

Defendant

William Kelly

Notice Party

Procedural Posture

Special Summons / Motion for Approval of Sale and Possession Order

Legal Issues

  1. 1 Whether the sale of lands in Folio 3855 and Folio 3856, County Tipperary, for €337,000 should be approved
  2. 2 Whether an order for vacant possession should be granted to facilitate the sale
  3. 3 Whether the pending adverse possession claim by William Kelly should delay the sale

Ratio Decidendi

The court approved the sale of the lands for €337,000 and ordered vacant possession because the plaintiff's judgment mortgage was well-charged, the sale price was supported by independent valuation and the priority encumbrancer, and no credible higher offer was available. The pending adverse possession claim by Mr. Kelly did not justify delaying the sale, as it was inconsistent with prior affidavits and not supported by sufficient evidence to warrant a stay.

Court Disposition

Plaintiff's motions granted

Orders

  • Sale of lands in Folio 3855 and Folio 3856, County Tipperary, to Calco Farms Limited (or Mr. Con Callanan) for €337,000 approved
  • Order for vacant possession directed against William Butler, William Kelly, their servants or agents, and any person with notice