“No Locus, No Claim” — High Court Clarifies the Consequences of Fraudulent Assertions and Permission-Based Occupation in Adverse Possession Cases
Commentary on Von Geitz v O’Brien & Mazars ([2025] IEHC 399)

1. Introduction

Von Geitz v O’Brien & Mazars concerned three motions, but the litigation boiled down to two: (a) the defendants’ application to strike out the plaintiff’s action under Order 19 Rule 28 of the Rules of the Superior Courts (as amended) or under the court’s inherent jurisdiction, and (b) the plaintiff’s cross-motion for judgment in default of defence.

The plaintiff, Mr Juerg von Geitz, claimed that he had acquired title to 42 Percy Lane, Dublin by adverse possession; sought declarations that any conveyance of the property was void; and pursued damages for negligence, breach of fiduciary duty, duty of care and negligent misstatement against Tom O’Brien (receiver) and Mazars (his employer). In response, the defendants asserted that the claim was frivolous, fraudulent, and hopeless because:

• Von Geitz was never in adverse possession; he occupied with the permission of the registered owner, Mr Murtagh.
• He had fabricated and used a doctored lease to bolster his position.
• No duty of care existed between a receiver (or his firm) and a trespasser/occupier.

2. Summary of the Judgment

Mr Justice Nolan struck out the entire action, holding that:

• The pleadings disclosed no reasonable cause of action and were bound to fail within the meaning of Order 19 Rule 28.
• The plaintiff had no locus standi to challenge the receivership or the loan sale.
• The claim to adverse possession collapsed on the plaintiff’s own admissions that he was in the property with the owner’s permission and had vacated by 2019.
• The creation and deployment of a forged lease amounted to fraud and illustrated an abuse of process.
• Any causes of action in negligence, breach of fiduciary duty, or negligent misstatement were unsustainable because there was neither duty nor damage.

3. Analysis

3.1 Precedents Cited and Their Influence

1. Dunne v Iarnród Éireann [2016] IESC 46 — Re-affirmed the classical test for adverse possession: occupation must be “nec vi, nec clam, nec precario” (without force, secrecy, or permission). Justice Nolan applied this directly: the plaintiff’s occupation was with permission; therefore, time did not run.
2. McLoughlin v Fennell [2024] IEHC 178 — Simons J struck out an adverse-possession claim where the occupier relied on the owner’s consent. Nolan J used the same rationale: an admission of consent is fatal.
3. O’Malley v NSAI [2024] IEHC 500 — Clarified the post-amendment reach of Order 19 Rule 28: the court may examine affidavit evidence to test whether proceedings are “bound to fail.” That framework governed the strike-out analysis.
4. Meehan v Ireland [2025] IECA 59 — Court of Appeal endorsed Simons J’s approach to Rule 28. Nolan J followed that template, emphasising that the distinction between Rule 28 and inherent jurisdiction is now largely academic.
5. Mohan v Revenue Commissioners [2025] IEHC 63 and Sun Fat Chan v Osseous [1992] 1 IR 425 — Courts should grant leave to amend if an amendment could “save” the action. Nolan J examined that possibility and concluded no amendment could cure the defects.
6. Keane & Keane v Ulster Bank [2024] IECA 293 — A negligent-misstatement claim fails where no loss is pleaded. Applied to defeat the plaintiff’s damages claim.
7. Howley v McClean [2025] IECA 77 — Warned against baseless fraud allegations; highlighted cost-sanction “weapons.” Nolan J invoked this to censure the plaintiff’s allegations.

3.2 Legal Reasoning

The judgment intertwines three strands of reasoning:

a) Absence of Adverse Possession

• To acquire title, occupation must be without the owner’s permission and continuous for 12 years (Statute of Limitations 1957).
• Emails/evidence showed Mr Murtagh gave the plaintiff permission and the plaintiff styled himself a tenant (even offering to buy the freehold).
• Because permission vitiates hostility, the statutory clock never started; additionally, the plaintiff had vacated by 2019, breaking continuity.

b) Fraudulent Conduct and Abuse of Process

• The plaintiff edited a lease to insert his own details and furnished it to the receiver. The court labelled this “fraud,” not mere negotiation.
• Fraudulent reliance on a document taints the entire action and underpins the “abuse of process” limb of Rule 28.
• Repeated inconsistent positions (tenant vs. squatter) evidenced a “disconnect with the truth.”

c) Strike-Out Threshold Under Updated Order 19 Rule 28

• Court may consider affidavits to decide if there is “no credible basis” and proceedings are “bound to fail.”
• The plaintiff had no locus standi concerning the mortgage or receivership: he was neither borrower nor guarantor.
• No duty of care: the relationship between receiver and occupier is not fiduciary nor contractual.
• No pleaded loss: key element missing for negligent misstatement.
• The court explored whether any amendment could help (per Sun Fat Chan) and concluded none could.

3.3 Probable Impact of the Judgment

• Reinforcement of Consent Principle: Any admission of owner’s permission instantaneously dooms an adverse-possession claim. The judgment showcases how contemporaneous emails can override later pleadings.
• Clarification on Fraud and Strike-Out: Fabrication of documents will trigger a robust response and justify an early strike-out without trial. It serves as a deterrent and guidance for future receivership disputes.
• Enhanced Utility of Order 19 Rule 28: Post-amendment, courts feel comfortable weighing affidavit evidence at the interlocutory stage. This case provides a practical example and will likely be cited by litigants seeking to strike out meritless claims.
• Receiver’s Lack of Duty: Confirms that a receiver and his firm owe no duty of care to an occupier/trespasser not in privity of contract — useful precedent for insolvency practitioners.
• Costs & Isaac Wunder Orders: The judge signalled that repeat frivolous litigation might attract extended Isaac Wunder restrictions, hinting at future containment of serial litigants.

4. Complex Concepts Simplified

Adverse Possession (“Squatter’s Rights”)

Acquiring legal title to land by continuous, exclusive and hostile possession for a statutory period (12 years in Ireland) — must be without permission, secrecy, or force.

nec vi, nec clam, nec precario

Latin maxim meaning “without force, without secrecy, without permission.” Forms the core test for adverse possession.

Receiver

An independent professional appointed by a secured creditor to realise mortgaged property. The receiver’s duties flow to the secured creditor, not to occupiers.

Order 19 Rule 28 (as amended, July 2023)

Rule enabling the High Court to strike out any claim that (i) discloses no reasonable cause of action; (ii) is an abuse of process; (iii) is bound to fail; or (iv) has no reasonable chance of succeeding. The amendment explicitly allows courts to consider affidavit evidence.

Isaac Wunder Order

A court order restraining a person from launching further proceedings without prior permission, used to curb vexatious or repetitive litigation.

Negligent Misstatement

A tort where a party suffers financial loss by relying on a representation made without reasonable care. Requires duty of care, breach, reliance, and measurable loss.

5. Conclusion

Von Geitz v O’Brien & Mazars crystallises a straightforward, yet powerful, principle: when an occupier admits permission and engages in fraud, any claim to adverse possession or damages will be summarily struck out under Order 19 Rule 28 — no amendment can cure the defect.

The judgment provides an authoritative roadmap for:

• Receivers confronting occupiers who morph between “tenant,” “squatter,” and “adverse possessor.”
• Courts balancing access to justice with the need to protect scarce judicial resources from abusive litigation.
• Litigants and practitioners understanding that the fabrication of documents is not a negotiational ploy but a fatal act of fraud with procedural consequences.

In the broader legal landscape, Mr Justice Nolan’s decision will likely be invoked in future strike-out motions, adverse-possession disputes, and cases involving allegations of fraud against office-holders. The High Court’s unequivocal stance — “No Locus, No Claim” — underscores that the Irish courts remain vigilant guardians against inventive but baseless litigation strategies.