State fails in bid to evict squatter

The Chief State Solicitor cannot pursue a claim for court orders requiring a man give up possession to the State of the home of an elderly woman where he has lived for 30 years, the Supreme Court has ruled.

Desmond Grogan broke into the home of Alice Dolan at Enniskerry Road, Dublin, after her death in October 1981.

He gained access to the house through the back door in February 1982 after learning, in the course of his employment in the auctioneering business, of Ms Dolan's death and apparent absence of any next of kin.

He has lived there since with Mary Grogan, the court noted.

Ms Dolan, born Alice Williams, was a barrister and died aged 80 at James Connolly Memorial Hospital in Blanchardstown. She was predeceased by her husband Patrick in 1969.

Letters of administration of Ms Dolan's estate were executed in July 2000 and granted to then Chief State Solicitor Laurence A Farrell, on consent of the Attorney General.

Chief State Solicitor David O'Hagan, as successor to Mr Farrell, later became the personal representative of Ms Dolan's estate and issued Circuit Court proceedings in May 2002 seeking orders requiring Mr Grogan deliver up possession of the house to the State.

Mr Grogan disputed the State's right to possession and argued, as he had lived in the premises since 1982, he had achieved adverse possession or squatter’s rights because he had exceeded the 12 year period required for adverse possession.

He also argued Mr O'Hagan was not a "State authority" for the purpose of the Statute of Limitations 1957, with the effect that the 30 year period available to State authorities to pursue an interest in an estate was not available to Mr O'Hagan.

Legal issues arising from the case were referred by the Circuit Court for determination and the Supreme Court's two to one majority ruling on those matters today means the State cannot pursue its claim for possession.

The issues concerned the appropriate limitation period within which, in the facts and circumstances of this case, an action must be brought by a personal representative to recover lands forming part of the estate of a deceased where the State is the ultimate intestate successor.

All three judges agreed found Mr O'Hagan is not a "State authority" within the meaning of Section 2.1 of the Statue of Limitations.

The majority court - Mr Justice Nial Fennelly and Mr Justice Joseph Finnegan - also found the relevant limitation period applying in this case was 12 years, as provided for in Section 13.2 of the 1957 Act, not 30 years. Ms Justice Fidelma Macken disagreed and found the period was 30 years.

All three judges agreed the decision as to what limitation period applied was not affected by Section 65 of the Succession Act 1965.

Giving the majority judgment, Mr Justice Joseph Finnegan said the definition of State authority in Section 2 was clear and included a Minister of State, the Attorney General and Revenue. There was nothing to suggest the Attorney General, for the purposes of the act, includes the Chief State Solicitor, he said.

Mr Justice Finnegan also noted the Chief State Solicitor can be called upon any time to execute an assent in favour of a State authority (normally the Minster for Finance). In those circumstances, it was not necessary to construe Attorney General widely to enable the State's interest to be protected when representation issued to the Chief State Solicitor on behalf of the State.

As Mr O'Hagan was not a State authority, the 30 year limitation period applicable to state authorities did not apply, he ruled.

Ms Justice Macken found the letters of administration of the estate were correctly granted and Mr O'Hagan, as personal representative of the Dolan estate, was entitled and obliged under law to bring proceedings for recovery of the premises and to defend the claim to adverse possession.

In her view, the fact Mr O'Hagan was not a named State authority did not decide the matter. The grant of letters of administration could be set aside on consent and the Attorney General could reapply for letters of administration to be granted to him again on behalf of the State and commence fresh proceedings before the end of the 30 year expiration period.

In this case, Mr Grogan had been "clever" in not joining the appropriate parties to the case, including the State, as to do so would have entitled those parties to be heard and to raise their interests and limitation period, the judge added.