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McMahon v Baggott Court Developments

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001652 / Case Ref No: 0116-23754
Appellant Tenant: Neil McMahon
Respondent Landlord: Baggot Court Developments
Address of Rented Dwelling: 3_7/10 Baggot Court , Dublin 2, D02AD72
Tribunal: Peter Shanley (Chairperson)
Eoin Byrne, Ciara Doyle
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 19 May 2016 at 2:30
Attendees: Neil McMahon (Appellant Tenant)
Harry Carpendale (Appellant Tenant’s solicitor)
Igor Fleming (Respondent Landlord’s
representative)
In Attendance: Wordwave T/A DTI Stenographers
1. Background:
On 25 January 2016 the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The Tenant also made an
application to the Residential Tenancies Board received on the same date. The matters
were referred to an Adjudication which took place on 16 February 2016. The Adjudicator
determined that:
1. That the Respondent Tenant is out of time to challenge the rent review of the
29th of June 2015.
2. That the sum of €1,030 is owing in arrears of rent provided the rent review is
not challenged.
3. That there will be a stay on enforcement of the portion of €900 from those
rent arrears if within 14 days of the Date of this Determination Order an application is
made or is in being to the Board (or on appeal the Circuit Court) under section 88 of
the Residential Tenancies Act for an extension of time to challenge the rent review. If
such an extension is granted, the sum of €130 in rent arrears is due and owing and
the balance shall be remitted to the adjudicator dealing with the lawfulness of the rent
review. If an extension is refused, the sum of €1,030 shall be paid within 14 days of
the Date of this Determination Order or within 14 days of the Board (or if appealed
the Circuit Court) refusing an application for an extension under section 88 of the Act
whichever is the later.
4. That the Applicant Landlord shall replace the toilet seat within 28 days of the
date of this Determination Order.
5. That the Applicant Landlord shall repair the ceiling and carpets within 28 days
of the date of this Determination Order so that they comply with the minimum
standard regulations and are in at least a comparable condition to the condition they
were in at the commencement of the tenancy.
6. The Respondent Tenant is entitled to €100 damages for the replacement of
the lock and the Applicant Landlord is entitled to offset that against the arrears of rent
owed.
Subsequently an appeal was received from the Tenant on 7 March 2016. The grounds of
the appeal were stated to be: Standard and maintenance of dwelling; Damage in excess
of normal wear and tear; Rent arrears; Invalid Notice of termination; Rent more than
market rate (Not Applicable to Approved Housing Body Tenancies); Rent arrears and
overholding; Breach of landlord obligations. This was approved by the Board on 10 March
2016
The RTB constituted a Tenancy Tribunal and appointed Peter Shanley, Ciara Doyle, Eoin
Byrne as Tribunal members pursuant to Section 102 and 103 of the Act and appointed
Peter Shanley to be the chairperson of the Tribunal (“the Chairperson”).
On 22 April 2016 the Parties were notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing.
On 19 May 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson sought clarification on
whether the Landlord, Baggot Court Developments, was a limited company as appeared
to be the case on the face of the lease. It was confirmed by the Landlord’s representative
that Baggot Court Developments was a partnership comprising Tom Mulligan and Dermot
Mulligan.
The Chairperson confirmed with the Parties that they had received the relevant papers
from the RTB in relation to the case and that they had received the RTB document
entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present their case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath and be recorded by
the official stenographer present and he reminded the Parties that knowingly providing
false or misleading statements or information to the Tribunal was an offence punishable
by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [section 123(3) of the 2004 Act].
5. Submissions of the Parties:
Tenant’s Submissions:
(i) Rent Arrears
The Tenant gave evidence that the tenancy commenced on 20 August 2013 at an initial
rent of €1,700 per month. By letter dated 16 July 2014 the Landlord’s agent sent a notice
of rent review to the Tenant notifying the Tenant of a rent increase to €1,775 from the
then current rent of €1,700. The letter stated that “in 35 days from the service of this
letter, that is from the 20th of August 2014, this rent increase to be deemed to be owing
from that date”.
By letter dated 29 June 2015 the Landlord’s agent sent a notice of rent review to the
Tenant notifying the Tenant of a rent increase to €1,925 from the then current rent of
€1,775. The letter stated that “in 28 days from the service of this letter, that is the 29th
(sic) of July 2015 the new rent will accrue from this date. As your lease is due to expire on
19th August 2015 the new rent will accrue from that date. This notice is served on
Wednesday 1st July 2015”
The Tenant gave evidence that on 18 August 2015, he attempted to refer a dispute to the
RTB challenging the rent review notice. The Tenant states that due to an omission in the
submission of the dispute to the RTB, the dispute case file was closed by the RTB and it
was deemed to be withdrawn.
As both the Landlord and the Tenant understood that the rent review was the subject of a
dispute pending determination by the Board, the Landlord continued to seek, and the
Tenant continued to pay, rent at the previous rate of €1,775 per month (although the
Tenant acknowledged that at the date of the hearing he was in arrears of €175).
The Tenant submitted that the Landlord is not entitled to seek rent arrears of €1,375
which, it was agreed by both parties, would be due on foot of the rent review notice dated
29 June 2015, if that notice was lawful and unchallenged.
The Tenant submitted that the rent review was unlawful in that it did not comply with the
provisions of section 20 of the Residential Tenancies Act 2004 in that it occurred more
frequently than once within a period of 12 months.
The Tenant further submitted that it is not out of time to challenge the validity of the rent
review notice. Section 22(3) of the Residential Tenancies Act 2004 provides that:
“(3)[…]a dispute in relation to a rent falling within subsection (1) must be referred to the
Board under Part 6 before
(a) the date stated in the notice under subsection (2) as the date from which that rent is
to have effect, or
(b) the expiry of 28 days from the receipt by the tenant of that notice,
whichever is the later.”
As to what constitutes a “rent falling within subsection (1)”, subsection (1) provides as
follows:
(1) The setting of a rent (the “new rent”) pursuant to a review of the rent under a tenancy
of a dwelling and which is otherwise lawful under this Part shall not have effect unless
and until the condition specified in subsection (2) is satisfied.
The condition specified in subsection (2) is that at least 28 days before the date from
which the new rent is to have effect, a notice in writing must be served by the landlord on
the tenant stating the amount of the new rent and the date from which it is to have effect.
As such the Tenant submitted that the time limit set out in subsection (3) to refer a
dispute to the Board only applies to disputes regarding the setting of a rent under a
tenancy and which is otherwise lawful under Part 3 of the Act. The Tenant submitted that
as the rent review was not “otherwise lawful” under Part 3 of the Act (being in breach of
section 20 in that it occurred more frequently than once within a period of 12 months), the
time limit prescribed by section 22(3) does not apply to the Tenant’s dispute regarding the
rent review.
The Tenant therefore submitted that (i) he is not out of time to dispute the validity of the
rent review; (ii) the rent review was unlawful; and (iii) therefore the arrears of rent due are
€175.
The Tenant further submitted that in any event the proposed rent increase was not in line
with market rent for that tenancy at that time, although he was not in a position to adduce
any evidence of comparable properties to which the Tribunal ought to have regard in
relation to this submission.
(ii) Breach of Landlord’s Obligations
The Tenant gave evidence that the Landlord was in breach of its obligations in respect of
the following matters:
(i) The fridge needed to be replaced and the Tenant had one year without a functioning
fridge.
(ii) The dishwasher needed to be replaced and a number of months passed before it
was replaced by the Landlord.
(iii) There were cinder blocks left in the Tenant’s storage bin which prevented him using
this bin to store his refuse prior to leaving it out for collection. As such the Tenant stated
that he had to store his refuse in the apartment prior to leaving it out for collection.
(iv) The toilet seat was cracked and despite requesting that this be remedied, the
Landlord had not done so.
(v) There was a leak which occurred in October 2015 and despite the Tenant notifying
the Landlord of this, nothing was done for 4 to 6 weeks. This caused an ingress of water
into the apartment resulting in the plasterwork on the ceiling becoming damp and falling
off and the carpet becoming damp.
(vi) The Tenant gave evidence that he paid €150 to fix a lock on an external
door/ventilation aperture, although no receipt was provided in respect of this expense and
the Tenant did not seek more than the €100 awarded to him by the adjudicator in respect
of this item.
(vii) The Tenant was not provided with a rent book. Although the Tenant acknowledged
that he did not ask for one and did not dispute the fact that he had been offered one at
the outset of the tenancy.
(viii)The Notice of Termination which was served on the Tenant, dated 26 December
2015 was malicious in its timing and was not served in accordance with Clause 5.2 of the
lease which provided that “any notice served by the Landlord on the Tenant shall be
sufficiently served if sent by registered or recorded post to the Tenant at the property”.
The Tenant acknowledged that the Landlord had withdrawn the Notice of Termination and
was not seeking to rely on it.
Landlord’s Submissions:
(i) Rent Arrears
The Landlord’s agent submitted that the rent review notice was served correctly and that
the rent review did not occur within a 12-month period from the last rent review, such as
would contravene section 20 of the Residential Tenancies Act 2004.
He submitted that the change in the rent cannot take effect twice within a 12-month
period and that it was not the Landlord’s intention for the rent increase to take effect until
12 months had elapsed since the last increase. If the rent increase on foot of the rent
review notice is deemed to set a new rent within 12 months of the last increase, the
Landlord’s agent submitted that this is a breach of the requirements of section 20 by one
day and accordingly amounts to no more than a minor slip, which should be overlooked.
The Landlord’s agent confirmed that having been notified by the RTB of a dispute
regarding the rent review referred by the Tenant, the Landlord continued to charge rent at
the previous rate of €1,775 per month. This, he submitted, was due to section 86 of the
Residential Tenancies Act 2004 which provides that pending the determination of a
dispute that has been referred to the Board (but subject to that determination when it is
made) if the dispute relates to the amount of rent payable, no increase in the amount of
the rent may be made. The Landlord’s agent gave evidence that he was not unduly
concerned that he had not received any further correspondence from the RTB as at the
time it was not unusual in his experience for there to be a 3 to 6 month period from the
referral of a dispute until an adjudication would take place. He stated that he was
ultimately informed by the RTB in December 2015 that the dispute in respect of the rent
review was “withdrawn”.
The Landlord stated that the proposed increased rent was in line with the market rent for
the tenancy. The Landlord provided a number of examples of comparable properties
advertised in September 2015 at rents not less than the new rent being sought on foot of
the rent review.
The Landlord’s agent submitted that once the dispute in respect of the rent review was no
longer pending, and had not been successfully challenged by the Tenant, the Landlord
was entitled to the increased rent as set pursuant to the rent review. The Landlord’s agent
submitted that the Landlord was entitled to this rent backdated to the date specified in the
rent review notice, i.e. 19 August 2015.
The Parties agreed that if the Landlord was entitled to the new increased rent from 19
August 2015, the amount of arrears stood at €1,375.
(ii) Breach of Landlord’s obligations
The Landlord’s agent gave evidence that following emails of 17 and 25 September 2014,
he arranged for a contractor to carry out repairs to the fridge. The Landlord’s agent stated
that the fridge was replaced on 3 July 2015.
The Landlord’s agent provided a receipt supporting his evidence that a new dishwasher
was purchased on 3 October 2014, the Tenant having complained that it was not working
properly by email dated 17 September 2014.
The Landlord’s agent gave evidence that he made several attempts to arrange access to
the dwelling for the purposes of dealing with the Tenant’s complaints but that access was
not made available by the Tenant.
The Landlord’s agent gave evidence that he was informed of the leak in the roof of the
property in October 2015 and arranged for a contractor to carry out external repairs. The
Landlord’s agent provided a receipt dated 12 November 2015 for work done by the
contractor some time prior to that date.
The Landlord’s agent gave evidence that the he was informed by the Tenant that the lock
was replaced. The Landlord’s agent gave evidence that he was happy to reimburse the
Tenant in respect of any such expenditure but that he required sight of the receipt in
respect of it. The Tenant did not have any receipt in relation to this expenditure.
The Landlord’s agent stated that at the outset of the tenancy he offered the Tenant a rent
book, however this was not requested by the Tenant. The Landlord also pointed out that
as the rental payments were made by electronic bank transfer, the bank statements act
as a record of the rent paid and fulfill the same role as a rent book.
The Landlord’s agent gave evidence that the termination notice dated 26 December 2015
had been withdrawn and was not being relied upon by the Landlord. He stated that there
was no malice in its service and that it was validly served in accordance with the
provisions of the legislation.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The tenancy commenced on 20 August 2013
2. The monthly rent under the tenancy was initially €1,700.
3. The monthly rent under the tenancy was increased to €1,775 from 20 August 2014
on foot of a notice of rent review which was served on the Tenant on 16 July 2014.
4. A notice of rent review was served on the Tenant on 1 July 2015 purporting to
increase the rent to €1,925 which was to take effect from 19 August 2016.
5. A deposit of €1,700 was paid which the Landlord retains.
7. Findings and Reasons:
7.1 The Tribunal finds that the review of the rent, notice of which was sent on 29 June
2015, was unlawful as it was the second such review of rent within a 12-month period.
1. The Residential Tenancies Act 2004 (“the Act”) envisages three steps involved in the
increasing, by a Landlord, of the rent payable under a tenancy. These are:
(i) The Landlord must engage in a procedure (however described) for determining
whether and to what extent the rent should be increased. This is the “review of a rent”
within the meaning of the Act as provided for in section 24(2)(a) of the Act.
(ii) At least 28 days before the date from which the new rent is to have effect, the
Landlord must serve a “notice in writing” on the Tenant, stating the amount of the new
rent and the date from which it is to have effect. This is prescribed in section 22(2) of the
Act.
(iii) The “setting of a rent” pursuant to the review of rent. This, according to section 24(3)
of the Act, refers to (a) the oral agreeing of the rent, (b) the oral or written notification of
the rent, or (c) where the lease contains a provision whereby on the happening of an
event the increase in rent shall have effect, the rent set pursuant to that provision.
2. Section 20 of the Act provides that the review of the rent cannot take place more
frequently than once in each period of 12 months.
3. Section 21 of the Act further provides that if the lease or tenancy agreement does not
provide for a review of the rent, either party may require a review of the rent under the
tenancy to be carried out and a new rent, if appropriate, set on foot of that review.
4. Two things are clear from the foregoing: first, a “rent review” within the meaning of
the legislation involves a decision-making process that takes place prior to the notification
in writing of the new rent; second, that “rent review” cannot take place more frequently
than once in every 12-month period.
5. It is therefore the decision-making procedure engaged in by the Landlord, for the
purpose of deciding the extent of the increase in rent, that cannot occur more frequently
than once in every 12-month period.
6. No evidence was given as to when this decision-making process occurred. Having
regard to the dates on which notices sent on foot of these rent reviews, the rent review in
2014 took place at some point prior to 16 July 2014 and the rent review in 2015 took
place at some point prior to 29 June 2015.
7. The Tribunal is satisfied that the rent reviews that occurred prior to the sending of
these notices, on the balance of probabilities, occurred within, at most, two weeks of the
notices being sent. The Tribunal is satisfied, in the absence of any evidence to the
contrary, that there was no unusually long time lag between the rent review in 2014 and
the sending of the notice on 16 July 2014. The Tribunal is also satisfied, in the absence of
any evidence to the contrary, any time lags between the rent reviews and the notices sent
in 2014 and 2015 would have been approximately the same in both years.
8. That being so, and despite no evidence having been adduced by the Landlord of the
precise date on which the relevant rent reviews took place, the Tribunal is satisfied that,
on the balance of probabilities, the rent review which precipitated the notice sent on 29
June 2015, occurred less than 12 months after the rent review which precipitated the
notice sent on 16 July 2014.
9. The rent review was therefore unlawful having regard to the provisions of section
20(1)(a) of the Act.
10. In light of the finding that the rent review was invalid by reason of breaches of the
provisions of section 20(1)(a) of the Act, the Tribunal does not consider it necessary or
appropriate to make any finding as to the market rent for the dwelling.
7.2 The Tribunal finds that the Landlord is not entitled to rent arrears in respect of a rent
set on foot of an unlawful rent review.
1. The Landlord has sought to set an increased rent pursuant to an unlawful review of
the rent. The Landlord does not have any legal entitlement to this increased rent. The
Landlord’s non-entitlement to this increased rent cannot be cured by the Tenant’s failure
to challenge the rent review.
7.3 The Tribunal finds that the Tenant is not precluded from challenging the validity of the
rent review by reason of being outside the time limit prescribed by section 22(3) of the
Act, because the rent review itself was not “otherwise lawful” under Part 3 of the Act
within the meaning of section 22(1) of the Act.
1. Although the Landlord is not entitled to the increased rent, irrespective of any
challenge to the rent review, the Tribunal is satisfied that the Tenant is entitled to dispute
the legality of the rent review.
2. Section 22(3) of the Residential Tenancies Act 2004 provides that:
“(3)[…]a dispute in relation to a rent falling within subsection (1) must be referred to the
Board under Part 6 before
(a) the date stated in the notice under subsection (2) as the date from which that rent is
to have effect, or
(b) the expiry of 28 days from the receipt by the tenant of that notice,
whichever is the later.”
3. As to what constitutes a “rent falling within subsection (1)”, subsection (1) provides as
follows:
(1) The setting of a rent (the “new rent”) pursuant to a review of the rent under a tenancy
of a dwelling and which is otherwise lawful under this Part shall not have effect unless
and until the condition specified in subsection (2) is satisfied.
4. The condition specified in subsection (2) is that at least 28 days before the date from
which the new rent is to have effect, a notice in writing must be served by the landlord on
the tenant stating the amount of the new rent and the date from which it is to have effect.
5. The Tribunal finds that the time limit, set out in subsection (3), to refer a dispute to
the Board only applies to disputes regarding the setting of a rent under a tenancy which is
“otherwise lawful” under Part 3 of the Act. As the rent review was not “otherwise lawful”
under Part 3 of the Act (being in breach of section 20 in that it occurred more frequently
than once within a period of 12 months), the time limit prescribed by section 22(3) does
not apply to the Tenant’s dispute regarding the legality of the rent review.
6. As already set out above, the Tribunal is satisfied that the rent review was not lawful
and the Tribunal upholds the Tenant’s right to dispute the legality of the rent review.
7. Further, the Tribunal is satisfied that there has been no prior determination in respect
of this issue. There is no evidence before the Tribunal that the previous dispute in relation
to the validity of the rent review notice was ever referred to the Board for a decision, nor
was there ever an adjudication hearing in respect of it, nor did a determination order
issue. As such, the Tribunal is satisfied that the matters in the present case have not
previously been argued (that is, that they are not res judicata). Accordingly, the Tribunal
is satisfied that it was entitled and indeed bound to consider the arguments raised in
respect of the invalidity of the rent review.
8. Also, the Tribunal notes that section 64A of the Act, as inserted by the Residential
Tenancies Amendment Act 2015, in respect of determinations in respect of slips or
omissions, applies only to notices of termination under section 62 of the Act, and is not
stated to apply to notices under section 22 of the Act. In any event, where the Tribunal is
satisfied that the rent review was not lawful, it does not appear any such slip rule would
save the review.
7.4 Finding: The Tribunal finds that the Respondent Tenant is in breach of Section
16(a)(i) of the Residential Tenancies Act 2004 (“the Act”) in that there are arrears of rent
of €175
Reasons:
1. Section 16(a) of the Act provides that a tenant must “pay to the landlord or his or her
authorised agent (or any other person where required to do so by any enactment)—
(i) the rent provided for under the tenancy concerned on the date it falls due for
payment…”.
2. Having regard to the agreement between the Parties as to the rent due if the rent
review is unlawful, the Tribunal is satisfied that the Tenant is in arrears of rent in the
amount of €175 as at 19 May 2016.
7.5 Finding: The Tribunal finds that the Respondent Landlord is not in breach of its
obligations to the Tenant in relation to the issues of (i) the fridge, (ii) the dishwasher, (iii)
the toilet seat, (iv) the leak in the roof, (v) the rent book or (vi) the notice of termination.
Reasons:
1. The burden of proving that there was a breach by the Landlord of his obligations is
on the Tenant.
2. The Tribunal is satisfied on the balance of probabilities that the Landlord’s agent
dealt with the Tenant’s complaints in relation to the fridge in a reasonably prompt and
efficient manner. In particular, the Tribunal is satisfied that following emails of 17 and 25
September 2014, the Landlord’s agent arranged for a contractor to carry out repairs to the
fridge. The Tribunal is satisfied that the fridge was subsequently replaced on 3 July 2015.
There is no written evidence of any communication occurring after the visit of the
contractor prior to the complaints made shortly before the replacement of the fridge. If the
fridge was not working after the contractor had visited the dwelling, the Tenant should
have made the Landlord aware of this. There were clearly a number of emails after the
attendance of the contractor at the dwelling and the fridge is not referred to again. As
such, the Tenant has not proved any breach of obligations by the Landlord in this respect.
3. The Tribunal is satisfied on the balance of probabilities that the Landlord’s agent
dealt with the Tenant’s complaints in relation to the dishwasher in a reasonably prompt
and efficient manner. In particular, the Tribunal is satisfied that a new dishwasher was
purchased on 3 October 2014, the Tenant having complained that it was not working
properly by email dated 17 September 2014.
4. The Tribunal is satisfied on the balance of probabilities that the Landlord’s agent
dealt with the Tenant’s complaints in relation to the toilet seat in a reasonably prompt and
efficient manner. In particular, the Tribunal is satisfied that the Tenant sent the Landlord
an email on 23 September 2013 complaining that the toilet seat was cracked, the
Landlord’s agent responded on 25 September 2013 inviting the Tenant to source a
replacement and fit it in which case the Landlord would pay the Tenant back the cost of
this (on the provision of a receipt). By email dated 25 October 2013, the Tenant
acknowledged the Landlord’s proposition in relation to the toilet seat and agreed to
proceed on that basis.
5. The Tribunal is satisfied on the balance of probabilities that the Landlord’s agent
dealt with the Tenant’s complaints in relation to the leak in the roof in a reasonably
prompt and efficient manner. In particular, the Tribunal is satisfied that the Landlord’s
agent was informed of the leak in the roof of the property in October 2015 and arranged
for a contractor to carry out external repairs. The Tribunal is satisfied that the receipt
dated 12 November 2015 refers to work carried out by the contractor some time prior to
that date. Further, while the Tenant referred to issues surrounding dampness remaining
after the repair of the leak, there is no evidence that the Tenant suffered any loss or
inconvenience such as would entitle him to damages in this respect.
6. The Tribunal is satisfied that the Tenant was offered a rent book at the
commencement of the tenancy, that he did not request one and that the bank statements
which record all rent payments fulfil the same role as a rent book. Further, in any event,
there is no evidence whatsoever that the Tenant has suffered any loss as a result of the
failure of the Landlord to provide a rent book, such as would entitle him to damages.
7. The Tribunal is satisfied that the Landlord’s agent was entitled to serve the Notice of
Termination in the manner that he did and the Tribunal is further satisfied that the service
of the Notice of Termination was not motivated by malice.
7.6 Finding: The Tribunal finds that the Respondent Landlord is in breach of its
obligations to the Tenant in relation to the issues of the cinder blocks present in the
Tenant’s storage bin and the cost of changing the lock and the Tribunal awards the
Tenant damages in the amount of €200 in respect of these breaches.
1. The Tribunal is satisfied that the Tenant raised the issue of cinder blocks being
present in his storage bin as early as 25 October 2013 and on three occasions prior to 16
July 2014 at which point the Tenant stated that “There is refuse in my bin from a previous
tenant which I want removed. This is the fourth and final time I’ll request that to be
emptied”.
2. The Tribunal is satisfied that after a further exchange of emails, the Tenant confirmed
in an email of 25 September 2014 that the issue with the refuse bins had been resolved.
However, he noted that it had taken over a year to resolve it.
3. There is an obligation on the Landlord, pursuant to Article 12 of the Housing
(Standards for Rental Houses) Regulations 2008 to provide access to suitable refuse
facilities.
4. The Tribunal is satisfied that that the Landlord was in breach of this obligation and
failed to deal with this issue in a prompt and efficient manner in breach of his obligations
to the Tenant and that the Tenant ought to be awarded €100 damages in respect of this
breach, having regard to the nature of the inconvenience caused and the length of time
the matter took to resolve.
5. The Tribunal is satisfied that the Tenant paid to change the lock on an external
aperture and that although the Tenant claims this cost €150, the Tribunal notes that the
Tenant is only seeking €100 reimbursement for this item as he does not have a receipt to
prove the cost of the replacement of the lock.
6. The Tribunal therefore awards damages of €200 to the Tenant in respect of breach of
the Landlord’s obligations, being €100 in relation to the failure to remove cinder blocks
fromthe bin and €100 for the cost of the replacement of the lock.
8. Determination:
Tribunal Reference TR0316-001652
In the matter of Neil McMahon (Tenant) and Baggot Court Developments (Landlord)
the Tribunal in accordance with section 108(1) of the Residential Tenancies Act
2004, determines that:
1. The Rent Review, notice of which was served on the Tenant on 29 June 2015
was unlawful.
2. The Respondent Landlord shall pay the total sum of €25 to the Appellant
Tenant, on the 20th day of the month following the issue of the Order, being damages
of €200 in respect of breaches of the Landlord’s obligations having deducted the rent
arrears of €175, in respect of the tenancy of the dwelling at Apartment 3, 7-10 Baggot
Court, Dublin 2.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
26 May 2016.
Signed:
Peter ShanleyChairperson
For and on behalf of the Tribunal.

Byrant Park QIAIF plc v Haggans

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1015-001390 / Case Ref No: 0715-19681
Appellant Landlord: Bryant Park QIAIF Plc
Respondent Tenant: John Haggins
Address of Rented Dwelling: Apt 144, Dargan Building, Heuston South Quarter,
St Johns RoadWest , Dublin 8, D08DV25
Tribunal: John FitzGerald (Chairperson)
Thomas Reilly, Gene Feighery
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 25 January 2016 at 2:30
Attendees: John Haggins (Respondent Tenant)
Lyndsay Boland (Apellent Landlord’s Agent)
In Attendance: Wordwave T/A DTI Stenographers
1. Background:
On 20 July 2015 the Tenant made an application to the Private Residential Tenancies
Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 02 September 2015. The Adjudicator determined that:
1. The Applicant Tenant’s application regarding rent more than market rate is upheld.
2. The market rent for the dwelling as of the 22nd August 2015 is €1200 for the dwelling
and €50 for the car parking space, total €1250.
3. The Applicant Tenant’s application regarding breach of Landlords obligation under
Section 12 (1) (e) of the Residential Tenancies Act 2004 is upheld.
Subsequently the following appeal was received from the Landlord on 06 October 2015.
The grounds of the appeal related to alleged rent more than market rate and this was
approved by the Board at their meeting on 27 October 2015.
The PRTB constituted a Tenancy Tribunal and appointed Thomas Reilly, Gene Feighery
and John FitzGerald as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed John FitzGerald to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 25 January 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd
Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
The tenant provided an additional comparable from Daft.ie of an apartment at Bellvue,
Islandbridge, Dublin 8 to the Tribunal outlining a rent of €1,100 per month for a one bed
apartment.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present their case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and he reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The Parties were then sworn in.
5. Submissions of the Parties:
Appellant Landlord’s Case:
Evidence of Lyndsay Boland (Appellant Landlord’s Agent)
The Appellant Landlord’s Agent gave evidence that her agency had issued a demand for
a rent increase on 25 June 2015 from the current rent of €1,200 plus €50 for a car space
to €1,350 per month and €50 for the space making a total of €1,400 to take effect on 22
August 2015.
She outlined that this figure represented the market rate currently being paid in the
apartment complex in which the dwelling is located and for similar comparable dwellings
in the area. She stated that in recent weeks her agency had let three units within the
same complex as the dwelling at the new rent of €1,400, including parking, and outlined
that the Appellant Landlord sought the same market rent payment in respect of the
subject dwelling. No documentary evidence was provided in support of this claim.
The Appellant Landlord’s Agent submitted details of a one bedroom dwelling for rent at
Hyde Sq, Dublin 8 from Daft.ie for €1,400 per month which she contended was a
comparable property and which was furnished and had car space.
She stated that there was no price differential between unfurnished and furnished rental
properties and that as the former tenant in the dwelling had no furniture it was agreed
between the parties that the Respondent Tenant would furnish the dwelling with his own
furniture. She said that if he had wanted the dwelling to be furnished, this could have
been arranged at no extra cost and that remains the position.
The Appellant Landlord’s Agent rejected the Respondent Tenant’s contention that the
increase in rent represented an attempt to have him vacate the dwelling. She stated that
the Landlord is very happy for the Respondent Tenant to remain in situ but that rental
prices have increased and that they seek to achieve market rent for the dwelling.
Respondent Tenant’s Case:
Evidence of John Haggins
The Respondent Tenant gave evidence of having originally rented the dwelling for a fixed
term twelve month period and how he had negotiated the rate of €1,100 plus a car space
at €50. He stated that he had negotiated this rate because the dwelling was unfurnished
and he rejected the Appellant Landlord Agent’s contention that furnished and unfurnished
dwellings achieved the same rental figure.
He stated that following the expiration of six months of his tenancy he sought confirmation
from the Landlord’s Agents that he had acquired a Part IV tenancy and they refused to
grant him this request. The Respondent Tenant subsequently acquired Part 4 security of
tenure by downloading the requisite documentation from the PRTB website under section
195 of the Act. He stated that he subsequently got an apology for this from the
Landlord’s Agents head office.
He told the Tribunal that he took the Appellant Landlord’s Agent’s evidence regarding the
3 recently let units at his apartment complex with ‘a pinch of salt’ and stated that her oral
testimony was unsupported with any documentary evidence of the claim. He too gave
unsupported oral testimony relating to a fellow tenant within the apartment complex whom
he claimed was currently paying €1,000 per month for a similar dwelling.
He challenged the comparison drawn by the Appellant Landlord’s Agent between the
subject dwelling and the sole cited dwelling at Hyde Square. He stated that the details of
the dwelling submitted were incomplete and it failed to state whether or not parking
facilities were included. He further stated that the dwelling appeared to be larger than his
dwelling.
The Respondent Tenant referred the Tribunal to 26 comparative samples submitted from
various estate agents from Daft.ie in Dublin 7 and 8 post code areas which commanded a
lower rental sum than that sought by the Appellant Landlord in support of his claim.
The Respondent Tenant referred the Tribunal to PRTB Rent Index detailing rent averages
for the period and he calculated that the increase being sought by the Appellant Landlord
represented a 22.7% increase when the PRTB website specified an average of around
11.35% increase in rents after 2013.
The Respondent Tenant stated that he agreed to a rent increase to €1,200 plus €50 car
space after his first year of occupancy and had not realised when he agreed to this that
he could have contested the matter at the time.
Finally he said that the turnover of tenants in the building was high and that the owners
were based overseas which made it harder to negotiate with their agents based in Dublin.
He rejected that the current rental sum sought of €1,400 represented current market rate
particularly in circumstances where no improvements have been carried out to the
dwelling and no furniture has been provided. In addition he said his is a single occupancy
tenancy with less wear and tear. He stated that he had supplied extensive evidence of
comparative rental levels and he had referred to the PRTB rent index whereas the
Appellant Landlord’s Agent had only provided incomplete evidence of one single dwelling,
which he rejected.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The tenancy commenced on 23 July 2013.
2. The rent at the date of the hearing was €1,250 per calendar month being €1,200 in
respect of the dwelling plus €50 for the parking space.
3. The security deposit paid at the commencement of the tenancy was €1,100.
4. The Tenant remains in occupation of the dwelling and has acquired Part IV security of
tenure.
5. There are no arrears of rent.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons thereof, are set out
hereunder.
7.1 Finding: The Tribunal find that Appellant Landlord’s claim for rent of €1,400 does not
represent market rent and is not upheld. The appropriate rent is €1,250, including car
parking and this rent is effective from 22 August 2015.
Reasons:
Under Section 24 of the Act, market rent is defined as rent which a willing tenant not
already in occupation would give and a willing Landlord would take for the dwelling, in
each case on the basis of vacant possession having regard to (a) the other terms of the
tenancy and (b) the letting values of dwellings of similar size, type of character of the
dwelling as situated in a comparable area to that which it is situated.
The Respondent Tenant submitted a number of methodologies to support his
determination of market rent. , the Respondent Tenant’s case was more persuasive
especially his use of and reliance on the PRTB index. The Tribunal finds that the
Respondent Tenant presented a more cogent case supported by more acceptable
calculations which were more objective.
8. Determination:
Tribunal Reference TR1015-001390
In the matter of Bryant Park QIAIF Plc (Landlord) and John Haggins (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The market rent for the dwelling as of 22 August 2015 is €1,250 which includes
parking at a rate of €50 per month in respect of the tenancy at 14H Dargan Buildings,
Heuston South Quarter, Dublin 8.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 06 February 2016.
Signed:
John FitzGerald Chairperson
For and on behalf of the Tribunal.

Greene v Smith

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001587 / Case Ref No: 1115-22627
Appellant Tenant: Mark Greene
Respondent Landlord: Gabrielle Smith
Address of Rented Dwelling: 29 Cowper Downs, Cowper Road, Rathmines ,
Dublin 6, D06P7R6
Tribunal: Dairine Mac Fadden (Chairperson)
Gene Feighery, Aidan Brennan
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 30 March 2016 at 10:30
Attendees: Gabrielle Smith (Respondent Landlord)
Mark Greene (Appellant Tenant)
Marian Mc Gee (Solicitor for the Respondent
Landlord)
In Attendance: DTI Stenographer/Logger
1. Background:
On 24 November 2015 the Tenant made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 76 of the Act. The matter was referred
to an Adjudication which took place on 12 January 2016. The Adjudicator determined
that:
1. The Applicant Tenant’s application in respect of rent more than market rate in
respect of the tenancy of the dwelling at 29 Cowper Downs, Cowper Road,
Rathmines, Dublin 6, is upheld.
2. The market rent for the Rented Dwelling is €2,400 per calendar month, which
rent applies to the tenancy of the Rented Dwelling from 27 November 2015 for the
duration of the tenancy, unless lawfully varied.
3. The Applicant Tenant shall pay rent outstanding from 27 November 2015 at
the rate of €2,400 per month or proportionate part thereof at the rate of €76.62 per
day, unless lawfully varied, and any other charges as set out in the terms of the
tenancy agreement, for each month or part thereof, until such time as he vacates the
above dwelling.
Subsequently the following appeal was received from the Tenant on 04 February 2016.
The ground of the appeal is Rent more than market rate. The appeal was approved by
the Board on 12 February 2016
The PRTB constituted a Tenancy Tribunal and appointed Dairine Mac Fadden, Gene
Feighery, Aidan Brennan as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Dairine Mac Fadden to be the chairperson of the Tribunal (“the
Chairperson”).
On 12 February 2016 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 30 March 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
Photographic evidence of the Dwelling (9 pages) to which the Appellant Tenant had no
objection.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present his case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant. The Chairperson said that members
of the Tribunal might ask questions of both Parties from time to time
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or Affirmation and be
recorded by the official stenographer present and she reminded the Parties that
knowingly providing false or misleading statements or information to the Tribunal was an
offence punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
She explained to the parties that the hearing before the Tribunal was a de novo hearing
which could be appealed to the High Court on a point of law only. She explained that
following the hearing, the Board would make a Determination Order which would be
issued to the parties.
The parties giving evidence were then sworn.
5. Submissions of the Parties:
The Appellant Tenant’s Case:
The Appellant Tenant said that he was currently paying a rent of €2,100 per month and
that the PRTB index showed that rent for a three bedroomed terraced house in
Rathmines, Dublin 6, fluctuated between €1,600 – €1,700 per calendar month. He said
that he felt that he was complying with the market rent in the area and that while the
PRTB index was not up to date allowance was made for this by the large buffer between
the figure given in the index and the amount of €2,100 which he was paying. He said that
he felt that the amount of the revised rent now being sought by the Respondent Landlord
in the sum of €2,750 per month was an upmarket rent. He referred to a claim made
during the adjudication by the agent for the Respondent Landlord that rent in the sum of
€2,500 was being paid for an apartment in a block immediately in front of the Dwelling
and said that he thought this claim swayed the Adjudicator. He said that he had a hard
time believing that such an apartment existed. He said that he was disappointed that the
Respondent Landlord’s Agent was not present for the Tribunal hearing so that he could
have questioned her on this.
In response to questions from the Tribunal, he said that the Dwelling was approximately
ten minutes’ walk from the Luas stop and that he thought that the PRTB index to which he
referred was for quarter 4 of 2014. He was asked if he had a copy of the index to submit
to the Tribunal but he said that he had not. It was put to him that he had not submitted
evidence of any properties being rented in the area to support his claim that the rent
being sought for the Dwelling was in excess of the market rent and he said that he had
not as he had relied on the PRTB index which he said was scientific.
In his written submissions to the PRTB he claimed that the rent he was currently paying
was in excess of the market rent. He also made reference in his written submissions to
the Q4 2015 PRTB Rent index for this property type of €1,786 per month and said that his
current rent was 18% higher than this index figure.
In response to cross examination by the Solicitor for the Respondent Landlord: it was put
to him that the rent being sought at the commencement of the tenancy had been reduced
from €2,500 to €2,100 because he had paid a number of months’ rent in advance and he
responded that he had paid approximately 4-5 months’ rent in advance; he was asked
whether he had found any properties similar to the one he was renting in the vicinity and
he said that he could not remember as it was in October 2014 when this arose; it was put
to him that the PRTB index was indicative/average and he said that he trusted the PRTB;
he was asked why he had agreed to pay €2,100 in October 2014 if this was not the
market rent and he said that it was because of the PRTB average and that he was happy
to pay a couple of hundred more as a buffer above the average; he was asked if he knew
that the Dwelling was in close proximity to some sought after schools and he said that he
did not know as his children were not of school going age; it was put to him that the
Dwelling was within walking distance of many amenities and he said that most properties
in the area were; he was asked whether he had looked at any other properties in the
area and he said that he had not as he was happy to deal with the properties submitted
by the Respondent Landlord in evidence.
In his closing submissions, the Appellant Tenant referred to the PRTB index and
submitted that the current rent of €2,100 which he was paying was the market rent for the
Dwelling and that there should be no increase.
The Respondent Landlord’s case:
The Respondent Landlord said that her agent who had been at the Adjudication was
abroad on holidays and could not attend the hearing before the Tribunal.
The Respondent Landlord said that before the commencement of the tenancy, the
Dwelling had come to the market at €2,400 – €2,500. She had two agents marketing the
Dwelling and it had been rented to the Appellant Tenant at the discounted rent of €2,100
per month because he had offered 5 months’ rent in advance.
She said that in October 2015 she had sought to increase the rent to €2,650 per month
which she said was an indisputable rent increase for a dwelling in this pocket of D6,
which was within walking distance of two Luas stops, 5 sought after senior and 5 sought
after junior schools and many amenities and good restaurants. She likened the area in
which the Dwelling was located to Chelsea and described it as being in a salubrious
location. She said that every agent was looking to get the Dwelling to rent and that there
were no rental properties to be had on this road. She said that the Dwelling was a full
house, with front and back gardens and it was bright and spacious. She said that at the
time of the rent review, she was aware that the rent would be locked in for two years. She
said that her Bank were shocked at the level of the rent she had agreed with the
Appellant Tenant and were of the view that it was too low a view shared by one of the
other letting agents she had engaged. She was seeking a fair and reasonable market
rent.
She referred to the properties which had been submitted by her Agent as evidence of
market rents in the area and said that these properties were not comparable. She said
that she had been told by her Agent that there were no comparable properties available
but that they would have to submit evidence of some properties in the area. She said that
some of the properties may have similar attributes but that no one could get a property
like the Dwelling. She referred to the 3 bedroomed dwelling in Harold’s Cross which she
said was not comparable.
In response to questions from the Tribunal, she said that all the dwellings in this particular
terrace were owner occupied; that the increased rent being sought by her was €2,750 per
month an increase of €650 and not the sum of €2,650 stated earlier in her evidence.
In response to cross examination by the Appellant Tenant: as regards the dwelling at 79
Grosnevor Lane, Dublin 6 submitted in her evidence, it was put to her that this was a
detached 3 bedroomed property in Dublin 6, which was advertised at only €200 above the
rent he was currently paying, to which she responded that this property was not part of
the D6 pocket; it was put to her that a terraced house would have a lesser value than a
semi-detached property which would be of lesser value than a detached property to which
she agreed; as regards the dwelling at South Hill, Dartry, Dublin 6 submitted in evidence
by her rented at €2,700 per month which he said was €50 less that the rent now sought
from him, she confirmed that this was a four bedroomed, semi-detached house with a
garage; it was put to her that this was also in a salubrious area like Cowper Downs and
she responded that it was not comparable; as to why it had been necessary to engage
two letting agents if there was such a demand for the Dwelling, she said that she needed
to move fast; as to whether she was aware of the PRTB rental index she said that she
was but that it needed upgrading; as to the 2 year rental lock-in to which she had
referred in her evidence, she said that her Bank had been nervous of this and that it was
an issue for her as it had been all over the news; as regards the dwelling in Charleville
Close, Rathmines, Dublin 6, submitted in her evidence rented at €2,200 per month which
was €550 less that the rent now sought, it was put to her that this was also in a nice part
of the area with good access to amenities and she responded that it was noisy, in a
commercial area located across from the Swan SC and was not comparable; it was put to
her that this dwelling at Charleville Close was very close to the rent which he was
currently paying, to which she responded that she was not aware of the condition of that
dwelling.
In her closing submissions, the Respondent Landlord’s Solicitor said that the Dwelling
was located in a nice pocket of Dublin 6. She said that at the commencement of the
tenancy, the Dwelling had been rented at a discounted market rent and that on a year on
year basis there would be at least an increase of 10% per annum from the initial rent
agreed which would bring it up to €2,300. She said that there were no comparables for
the Dwelling and that the PRTB index dealt with averages and that individual properties
can command higher rents. She referred to the definition of “market rent” in the Act as
meaning the rent which a willing tenant not already in occupation would give to a willing
landlord on the basis of vacant possession. She submitted that €2,750 was the market
rent for the Dwelling.
6. Matters Agreed Between the Parties
1. Dwelling at: 29 Cowper Downs, Cowper Road, Rathmines, Dublin 6, D06P7R6.
2. The Rented Dwelling is a three bedroom (two doubles one shower en suite, one
single) terraced house with a lounge, dining room and extended kitchen/diner, guest wc
and family bathroom. It has oil fired central heating, off-street parking for one car and a
rear garden. It is rented unfurnished.
3. Letting Agreement dated 7 October 2014 for a term of 1 year.
4. Tenancy commencement date of 8 October 2014.
5. Deposit of €2,100 was paid.
6. Current rent of €2,100 per month payable on the 7th day of each month.
7. The rent increase notice was served by the Respondent Landlord and received by
the Appellant Tenant on 29 October 2015.
7. Findings and Reasons:
Having considered the documentation before it and having considered the evidence
presented by the parties, the Tribunal finds that:
1. The monthly rent of €2,750 set by the Rent Review Notice issued to the Appellant
Tenant by the Respondent Landlord on 29 October 2015, to take effect on 27 November
2015, for the tenancy of the dwelling at 29 Cowper Downs, Cowper Road, Rathmines,
Dublin 6, D06P7R6, was above the market rent and consequently fails to comply with
section 19(1) of the Residential Tenancies Act 2004;
2. The market rent in respect of the Dwelling is €2,400 per month with effect from 27
November 2015.
Reasons:
The appropriate date for setting the market rent in this case is 29 October 2015 being the
date on which the rent review notice was served. For the avoidance of doubt, the rent
review notice issued by the Respondent Landlord to the Appellant Tenant pre-dates the
legislative amendments regarding rent reviews under the Residential Tenancies
(Amendment) act 2015.
Section 19 of the Residential Tenancies Act 2004 provides that in setting, at any
particular time, the rent under a tenancy, an amount of rent shall not be provided for that
is greater than the amount of the market rent for that tenancy at that time.
In relation to rent review, section 22 of the Act requires that at least 28 days before the
date from which the new rent is to have effect, a notice in writing is served by the landlord
on the tenant stating the amount of the new rent and the date it is to have effect.
The Tribunal is satisfied the correct period of notice was given to the Appellant Tenant in
relation to the rent review by means of the letter dated 29 October 2015, which provided
the rent would be increased to €2,750 per month with effect from 27 November 2015.
However, the Tribunal must still consider whether the amount of the reviewed rent being
claimed by the Respondent Landlord is greater than the amount of the market rent for
the dwelling at that time.
Market rent is defined in section 24(1) of the Residential Tenancies Act 2004 as follows:
In this Part “market rent”, in relation to the tenancy of a dwelling, means the rent which a
willing tenant not already in occupation would give and a willing landlord would take for
the dwelling, in each case on the basis of vacant possession being given, and having
regard to:
(a) the other terms of the tenancy, and
(b) the letting values of dwellings of a similar size, type and character to the dwelling and
situated in a comparable area to that in which it is situated.
Section 78 (1) (c) of the Act provides for the making of a complaint to the PRTB as
regards the time at which a rent review should take place or the amount of rent that
should be determined on foot of that review.
Neither party made any submissions that the terms of the tenancy were of significance in
determining the market rent in this particular case.
As regards letting values, the Appellant Tenant did not submit evidence of any properties
to the Tribunal to show the letting values of dwellings of a similar size, type and character
to the dwelling and situate in a comparable area. He did however rely on the PRTB index
as such evidence and also on the properties referred to by the Respondent Landlord as
part of her evidence lodged subsequent to his application. As regards those properties,
the Respondent Landlord said that these were not comparable with the dwelling and had
been submitted initially because of the agent’s advice that she would need to submit
some properties to be considered. She said that there were no comparable properties to
the dwelling. In highlighting the differences between the properties submitted by the
Respondent Landlord and the Dwelling, the Appellant Tenant would also appear to
accept that those properties are not comparable.
The PRTB index has been referred to by both parties in their evidence. The Respondent
Landlord submitted that the PRTB index is only indicative of average rental values and
this was also accepted by the Appellant Tenant in his evidence. The Tribunal was not
given a copy of the index by either party but having examined of its own accord the
PRTB index for Quarter 4 of 2015, notes that it is stated in the introduction to the index
that on an annual basis, nationally, rents were 9.8 per cent higher than in quarter 4 of
2014 and Dublin house rents were up 9.5%. The Tribunal noted also that this index was
based on actual rents received as distinct from the asking or advertised rent. It covers
large areas and does not distinguish between individual areas within Dublin. However,
where there are no comparable properties for the Tribunal to consider, the information to
be gleaned from the PRTB index gives an indication of rental trends nationally and in
Dublin at a particular point in time.
The Tribunal has noted that the Respondent Landlord in her evidence stated that the
locking in of the rent for a two year period as now required pursuant to the Residential
Tenancies (Amendment) Act 2015, was an issue for her at the time of the review. The
Tribunal considers that this may have resulted in the Respondent Landlord seeking an
inflated rent to cover a two year period.
The Tribunal has also noted that the Dwelling was let unfurnished and has noted that the
PRTB index does not distinguish between furnished and unfurnished dwellings.
In all of these circumstances, the Tribunal is satisfied that the increased rent claimed by
the Respondent Landlord of €2,750 per month is “greater than the amount of the market
rent” at the date of the rent review notice and therefore in breach of section 19 of the Act.
In accordance with section 115 (2) (b) of the Act where the Tribunal finds that an amount
of rent is in breach of section 19 of the Act, it must give an indication of what amount
would comply with section 19. The Tribunal is also empowered pursuant to section 115
(2) (a) of the Act to give a direction that a specified amount of rent be paid on a specified
date.
Having considered all the evidence put before it, the Tribunal finds that the monthly rent
in respect of the Dwelling on the review date of 29 October 2015 was €2,400. This
represents an increase of approximately 14% over the rent agreed at the commencement
of the tenancy and while this is above the percentage annual increase noted in the PRTB
index for Q4 of 2015, it allows in the Tribunal’s view for the fact that this index is an
indicative one based on national averages and cannot take fully into account the
individual character or location of the Dwelling.
8. Determination:
Tribunal Reference TR0216-001587
In the matter of Mark Greene (Tenant) and Gabrielle Smith (Landlord) the Tribunal
in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
1. The monthly rent of €2,750 set by the Rent Review Notice issued to the
Appellant Tenant by the Respondent Landlord on 29 October 2015, to take effect on
27 November 2015, for the tenancy of the dwelling at 29 Cowper Downs, Cowper
Road, Rathmines, Dublin 6, D06P7R6, was above the market rent and consequently
fails to comply with section 19(1) of the Residential Tenancies Act 2004;
2. The market rent in respect of the Dwelling is €2,400 per month with effect
from 27 November 2015;
3. The Appellant Tenant shall pay the sum of €2,400 per month to the
Respondent Landlord with effect from 27 November 2015, unless lawfully varied and
any other charges set out in the tenancy agreement.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 04 April 2016.
Signed:
Dairine Mac Fadden Chairperson
For and on behalf of the Tribunal.

Irish Residential Properties RIET plc v Keavney

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001463 / Case Ref No: 1015-21460
Appellant Landlord: Irish Residential Properties REIT Plc
Respondent Tenant: Patrick Keaveney
Address of Rented Dwelling: 56 Camac Crescent, Turvey Avenue, Inchicore ,
Dublin 8, D08A3E5
Tribunal: Orla Coyne (Chairperson)
John Keane, Finian Matthews
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 29 January 2016 at 10:30
Attendees: Mairead Sheridan (Appellant Landlords
Representative)
Patrick Keaveney (Respondent Tenant)
In Attendance: PRTB appointed Stenographer
1. Background:
On 07 October 2015 the Tenant made an application to the Private Residential Tenancies
Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 03 November 2015. The Adjudicator determined that:
1. The market rent in respect of the Dwelling at 56 Camac Crescent, Turvey
Avenue, Inchicore, Dublin 8, D08A3E5 is €1,325 per month.
2. The Tenant shall pay to the Landlord within 5 days of the date of issue of this
Order, the sum of €75 being rent arrears in respect of the rent due on the 1st
November 2015.
This Order was made by the Private Residential Tenancies Board on the 12 November
2015.
Subsequently the following appeal was received from the Landlord on 23 November
2015. The grounds of the appeal is Rent more than market rate. The appeal was
approved by the Board on 04 December 2015.
The PRTB constituted a Tenancy Tribunal and appointed John Keane, Finian Matthews,
Orla Coyne as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Orla Coyne to be the chairperson of the Tribunal (“the Chairperson”).
On 11 December 2015 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 29 January 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd
Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
NONE
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as an informal a manner as was possible;
that the person who appealed (the Landlord) would be invited to present his case first;
that there would be an opportunity for cross-examination by the Tenant; that the Tenant
would then be invited to present his case, and that there then would be an opportunity for
cross-examination by the Landlord’s representative.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
She clarified that albeit the Tribunal could have regard to the Adjudicators report it was
not bound by it and that the Tribunal is a fresh rehearing of the matter.
The Chairperson stressed that all evidence would be taken on oath and be recorded by
the official stenographer present and she reminded the Parties that knowingly providing
false or misleading statements or information to the Tribunal was an offence punishable
by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The Chairperson also informed the parties that if it seemed they may be able to resolve
their dispute by agreement the Tribunal would facilitate any such negotiations.
The parties were then sworn in.
5. Submissions of the Parties:
Appellant Landlord’s Case:
Ms. Sheridan on behalf of the Landlord stated that the tenancy commenced on the 17th
October 2014 under a tenancy agreement for 12 months. On the 24th September 2015
prior to ending of the term of the tenancy she served a notice of rent increase in the sum
of €1,375 an increase of €125 per month . The new rent to commence from the 1st
November 2015. Ms. Sheridan then went on to put before the Tribunal a number of
comparators of similar properties not only contained within the development at Camac
Crescent but also in relation to other apartment properties she claimed were comparable
in the area. She produced by way of comparators copies of leases in relation to other,
she claimed, similar apartments in the development in respect of which her client was
also the Landlord , together with advertisements from Daft. The advertisements from Daft
she stated were for 26 Camac Crescent which has 2 bedrooms, 2 bathrooms at a rental
of €1560 per month, Stephens Gate, James Street, which has 2 bedrooms one bathroom
at a rental of €1,400 a month, Rothe Abbey Court, Kilmainham Dublin 8 which has 2
bedrooms, 1 bathroom €1,450 per month and the Tramyard, Inchicore at €1,400 per
month which has 2 bedrooms and 1 bathroom.
The Tenant’s Dwelling she stated is a 2 bedroom apartment 1 bathroom together with a
car parking space.
The copy leases submitted by Ms. Sheridan relating to apartments in Camac Crescent
did not have on them the numbers of the specific units in Camac Crescent they were
purporting to relate to. She stated that she hoped to demonstrate to the Tribunal that the
dates which were on the copy leases before the Tribunal and the rent contained therein
showed what the rents they are obtaining in respect of each unit.
There were four copy leases produced as comparators by Ms Sheridan relating to
apartments in Camac Crescent, the commencement dates and for a period of twelve
months were as follows (1) the 1st September 2015 at a rent of €1,600, (2) the 3rd
September 2015 at a rent of €1,350, (3) 1st October 2015 at a rent of €1,375 and (4) the
1st December 2015 at a rent of €1,500 per month. The fifth comparator lease she
produced related to the Thomas Davis development commencing on the 2nd October
2015 at a rent of €1,540.
All the above she stated were 2 bedrooms and 1 bathroom, very similar to be used as
comparators in respect of the current Tenant’s Dwelling except that there was a
designated car park space with the dwelling which the apartments comprised within the
leases above did not have.
She stated that the Tenant while he had submitted an advertisement from their own
website for 26 Carmac Crescent which stated that it had been advertised at €1,300, this
had been an error that had occurred on their own website. There was “a glitch” on their
website but that on Daft it was advertised at the correct rent of €1,560 per month.
However, she stated that this particular apartment had still not been rented.
She described the complex at Camac Crescent as comprising of 9 blocks. Her client has
a number of apartments in each of the blocks. She stated that the Dwelling is in block E.
Because of the shortage in properties to rent, the rent going forward in all apartments
belonging to her client had been increased. She said that the notices of rental increases
sent out to the tenants depended on the date reviews were due, , with the new rent
applicable depending on when tenants had first moved into their apartments. This applied
to all the apartments owned by the Landlord. This was not just applicable to the Tenants.
She proceeded to give an example, stating that if a tenant moved into an apartment
owned by the Landlord in the Camac Crescent development in March 2015 the rent
would have been €1,350 plus €50 for parking. The Tenant moved into his apartment on
the 17th October 2014 and therefore his rent was set at €1,250.Therefore the Tenant had
received his notice of a rent increase on 24th September 2015 to take effect from 1st
November 2015. At the time the notice went out the market value rent was believed to be
€1,375 per month.
She was also asked by the Tribunal whether or not there is a difference between different
floors in the block and she replied no. She further stated that the Tenant’s dwelling is on
the ground floor and that in fact some tenants actually preferred the ground floor and this
too was not a factor in determining a rent increase. Also whether an apartment had a
balcony or not was not a factor in determining the rent. She further stated that in relation
to the apartment beside the Dwelling the rent is €1,350 per month plus €50 for parking.
She addressed the issue of security in the complex. She stated that there is a gate to
gain access to the development which can be closed. However, she stated that
unfortunately it was usually open because a number of tenants interfere with the gate
pad to gain access which results in the gate not shutting automatically. There is a
permanent work man on site and any time it was brought to his attention that the gate
was not working he would either re-set the code or repair it.
When asked by the Tribunal about the copy of the bank’s standing order mandate
produced by the Tenant relating to an apartment of his friends who were also renting their
apartment from the Landlord in the complex which showed that his friends were paying a
rent of 1300 euro per month, Ms Sheridan replied that she was not aware of what their
friends rent was prior to the 1st September 2015. However, she went on to state that the
notice in relation to this increase in rent would have been received by these tenants in
July 2015 for it to commence on the 1st September 2015.
The Tenant put a question to Ms. Sheridan as to whether or not a value was placed
when deciding on a rent increase, on a tenant already being in an apartment as
opposed to having the tenant leave and the apartment having to be advertised, decorated
and gotten ready for a new tenant . Ms Sheridan replied that they probably would look at
this and there would be a difference between whether the apartment was vacant as
opposed to if the tenants were already in the apartment when the notice of rent increase
was served on them. She stated that the Landlord would not want any tenant to leave but
the approach to rent increases would also depend on the number of notices that were
being served at any given time, and when the new rent was to take effect. .
Respondent Tenants’ Case:
The Tenant had submitted to the Tribunal a copy of a standing order mandate which he
stated showed that the rent of a similar apartment which his friends were renting in the
development, with a commencement date of the 1st September 2015 was €1,300 per
month. Yet the Tenant stated that they were being asked for more rent in their Notice of
Rent Increase dated the 24th September 2015 an increase of an additional €75 in 24
days.
He also believed the Landlord ought to place more value on a tenant being in the dwelling
as opposed to a landlord having to replace a tenant because no extra costs for cleaning
and advertising would be incurred as would happen if a tenant were to leave.
The Tenant drew attention to the comparators that he had produced within the local area.
There was only one apartment that the Tenant furnished as a comparator which was in
Carmac Crescent which he claimed showed the property for rent at €1,300 per month. He
said of the comparators produced by him, 11 in total, of which 2 were listed at €1,250, 4
at €1,300, 2 at €1,400 and 1 at €1,375, 2 at €1,350. Therefore he stated that the majority
of the units were priced between €1,250 to €1,300 per month He also stated that he
believed that most of the apartments that he used as comparators showed that they were
better furnished than the Dwelling when they first moved into it. He claimed that there
were a number of items missing from day one of their tenancy, such as cups and cutlery.
He believed that the rent was too much for the Dwelling, that they would be willing to pay
what the Adjudicator had awarded namely the sum of €1,325 as they believed that was
what the dwelling is worth in rental.
He referred to the comparator in Camac Crescent at €1,325 per month. He said he did
not accept that there was a glitch in the Landlord’s agent’s website as it appeared at
€1,325 on the day of the adjudication hearing. Neither did he accept that two of the copy
leases that had been produced by Ms Sheridan showing rents at €1,600 and €1,540 in
Camac Crescent could be taken as comparators because other apartments were going at
that time between €1,300 and €1,350 which he also argued were of a higher
specification.
The Tenant produced photographs that he had taken on the 27th January 2016. He
claimed they showed that the Dwelling was not in a safe location and where it is situated
shows it is not as secure as the units above it in the development. Since October 2014
when they first moved into the development the gate to the development was never
closed. The locking mechanism always appeared to be broken. He said that he was not in
the Dwelling during the day time as he left in the morning for work very early and came
back quite late at night.
Summation
The Landlord stated that she had produced more than enough comparators of the market
rent, not only within the development but also comparators outside the development in
the same area. She however, believed the best comparators are of similar apartments
within the development. She also believed that the leases she has produced as
comparators show that the increases, and the amount of the increase in rent depended
on when the notices were sent to the tenants advising the increase in rent and when
payment of the increased rent was to commence.
In relation to the argument put forward by the Tenant that his friends were paying €1,300
she stated that the notice in that case would have been served in July 2015 to
commence on the 1st September 2015.
The Tenant in his submission stated that his comparators showed that the market rent
should not be €1,375. He would accept a rent of €1325.00. But the rent went up to
€1,375 and having spoken to his friends who commenced paying their rent of €1,300 from
the 1st September 2015, his rent was increased by a further €75 within 24 days. He also
believes the increase is too much considering they are already in the dwelling and
therefore the Landlord did not have to incur costs in advertising or cleaning the Dwelling
and he believed that some value in relation to that should be reflected in any increase in
the rent.
6. Matters Agreed Between the Parties
The Tenant is still in residence in the Dwelling.
The deposit of €1,250 is still in the possession of the Landlord.
The rent currently being paid is €1,325 per month.
7. Findings and Reasons:
Finding: The Tribunal finds that the market rent with effect from the 1st November 2015
in respect of the Dwelling is €1,375 per month.
Reasons:
1. The Tribunal finds that the most useful comparators for market rent in relation to the
tenancy are the rents provided for in Leases for similar sized apartments in the same
complex. The Tribunal is of the opinion that this points to support the proposed increase
as being the market rent as provided for in Section 24 of the Act. The Tribunal believes
that the greatest weight of all the comparators that were produced by both the Landlord
and the Tenant has to be placed on similar apartments within the same development as
that in which the Dwelling is situated.
8. Determination:
Tribunal Reference TR1115-001463
In the matter of Irish Residential Properties REIT Plc (Landlord) and Patrick
Keaveney (Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The monthly rent of €1,375 as set out by the Rent Review Notice with the
date of service of the 24th September 2015,to take effect on the 1st November 2015 in
respect of the tenancy of the Dwelling 56 Carmac Crescent, Turvey Avenue, Dublin 8
is not above market rent.
2. The monthly market rent in respect of the tenancy of the Dwelling as
aforesaid is €1,375 fromthe 1st November 2015.
3. The Respondent Tenant shall pay rent in the sum of €1,375 per month to the
Appellant Landlord with effect from 1st November 2015 unless and until this amount is
lawfully varied in respect of the tenancy of the Dwelling as aforesaid.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 10 March 2016.
Signed:
Orla Coyne Chairperson
For and on behalf of the Tribunal.

Murphy v Keogh

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001579 / Case Ref No: 1015-22008
Appellant Tenant: Paula Murphy
Respondent Landlord: Gerard Keogh, Tony Skinner
Address of Rented Dwelling: Flat 6, 159 Rathgar Road, Rathgar , Dublin 6,
Tribunal: Thomas Reilly (Chairperson)
Brian Murray, Rosemary Healy Rae
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 31 March 2016 at 2:30
Attendees: Paula Murphy (Appellant Tenant)
Gerard Keogh (Respondent Landlord)
Alan McMurray (Respondent Landlords
Representative)
John Ryan (Witness)
In Attendance: DTI Stenographers
1. Background:
On 28 October 2015 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 17 December 2015. The Adjudicator determined that:
The Tenant pay the increased rent of €950 per month on the next rent day after the
issue of this Order together with any arrears of increased rent that have accrued
since the 1st November 2015.
Subsequently the following appeal was received from the Tenant on 01 February 2016.
The grounds of the appeal are Rent more than market rate (Not Applicable to Approved
Housing Body Tenancies), Breach of landlord obligations and Other. The appeal was
approved by the Board on 02 February 2016
The RTB constituted a Tenancy Tribunal and appointed Thomas Reilly, Brian Murray,
Rosemary Healy Rae as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Thomas Reilly to be the chairperson of the Tribunal (“the Chairperson”).
On 16 February 2016 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 31 March 2016 the Tribunal convened a hearing at Tribunal Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
Two copies of photographs.
RTB average monthly report ,Rathgar 2015.
4. Procedure:
Opening the Tribunal the Chairperson stated that it had been established to hear an
appeal by the Appellant Tenant in the case of a dispute between the Tenant and the
Respondent Landlord in respect of the tenancy of a dwelling at Flat 6, 159 Rathgar Road,
Rathgar, Dublin 6. He introduced the members of the Tribunal to the parties. He asked
the Parties present and any witnesses to identify themselves and to state the capacity in
which they were attending the Tribunal hearing. He confirmed with the Parties that they
had received the relevant papers from the RTB in relation to the case and that they had
received and understood the RTB document entitled “Tribunal Procedures. The Chairman
said that he would be happy to clarify any queries in relation to the procedures either then
or at any stage over the course of the Tribunal hearing. The Chairperson then explained
that the Tribunal hearing, as stated in its procedures, was not intended to be very formal,
but that the Parties must follow any instructions given by the Chair, that evidence would
be given under Oath or Affirmation, would be recorded by the stenographer present, and
that based on that recording a transcript could be made available to the Tribunal if
necessary, to assist it in preparing its report on the dispute. The parties confirmed that
they had no objection to the arrangements for recording the proceedings. The
Chairperson also stated that it was against the law for anyone giving evidence to refuse
to take the Oath or Affirmation, or to knowingly provide materially false or misleading
information to the Tribunal. He pointed out that an offence may be prosecuted by the RTB
through the courts and a successful conviction could result in a fine of up to €4,000 or up
to 6 months imprisonment or both.
The Chairperson added that the Appellant Tenant would be invited first to present her
case, including the evidence of any Witness; this would be followed by an opportunity for
cross-examination by the Respondent Landlord; that the Respondent Landlord would
then be invited to present his case, followed by an opportunity for cross-examination by
the Appellant Tenant. He said that members of the Tribunal would ask questions of both
Parties from time to time. He also directed that neither Party should interrupt the other
when direct evidence was being given. He also said that at the end of the hearing, both
the Respondent Landlord and the Appellant Tenant would be given the opportunity to
make a final submission should they so wish. The Chairperson reminded the Parties that
the Determination Order of the RTB, based on the Tribunal Determination would decide
the issue between the parties and could be appealed to the High Court on a point of law
only. Ref section 123 (3) of the Act.
All persons giving evidence to the Tribunal were then sworn/affirmed.
5. Submissions of the Parties:
Appellant Tenant’s Case:
Evidence of Paula Murphy:-
The Appellant Tenant stated that she resided in the dwelling from September 2005 to the
present time. Her current rent is €700.00 per month and a notice of rent increase was
served upon her on 1 October 2015 and was due to take effect from 1 November 2015,
increasing the rent from €700.00 to €950.00. The Appellant appeals this increase on the
grounds that it is excessive and does not reflect the market rate in the area. It is the
contention of the Appellant that a new tenancy agreement between the parties effective
from 1 January 2015 precludes the Respondent Landlord from increasing the rent until
the conclusion of this agreement on 31 December 2015. On questioning by the Tribunal it
was ascertained that the last increase in the rent was in January 2014 when the rent was
increased from €650.00 per month to its present amount of €700.00, thereby featuring a
gap of one year and ten months between increases in rent.
In support of her case the Appellant Tenant referred to comparative data she acquired to
feature the extent to which she claims she is being asked to pay in excess of market rate.
The Appellant Tenant said that her flat is small in terms of floor area being 24 sq m
approximately. She said that her flat does not come within the one-bedroom flat category
and should be classified as coming within the category of “other flats”. Details of three
studio dwellings were entered into evidence by the Appellant eg Victoria Street,
Portobello, also 12 A Garville Road Rathgar and Frankfort Avenue Rathgar. The rents
sought for those dwellings ranged from , €700.00 to €740.00 and €750.00 respectively. It
is claimed by the Appellant Tenant that such dwellings are reflective of her dwelling both
in size and in price. A copy of data from the RTB rent index was presented featuring the
sum of €703.45 as being the monthly rental for a dwelling located in Rathgar ,Dublin 6
and fitting into the category, Other flats, one bed.for Q 4 2015 in such index.
The Appellant stated that her dwelling had a number of defects and her representative,
Mr Sean Ryan addressed those stating that there was non compliance with the Housing
(Standards for Rented Houses) Regulations 2008. He said the en-suite was inadequately
heated, having only a wall mounted fan heater and no extraction fan for the removal of
water vapour. He said that the only method of extraction of vapour was through the
window which caused difficulty for the Tenant during the winter months leading to large
electricity bills for heating. Extraction of odours was inadequate, notably in the kitchen
area. As a result of the poor ventilation some mould and flaking of ceiling paint has
occurred in the en-suite. Photographic evidence presented highlighted the existence of a
false vent which meant that there was an absence of air venting to the external of the
dwelling. It was claimed that space in the kitchen was limited resulting in the Appellant
stating that she could not open the fridge door fully due to a wall blocking the way. Mr.
Ryan also submitted that the level of the shower tray was too high and that the door
opening to the en-suite was only 34cm whereas it should be 70cm. In summary, Mr.
Ryan submitted that parts of the dwelling were not in compliance with Building
Regulations and “good standards”.
The Appellant Tenant stated that she had brought the Landlord’s attention to the lack of
ventilation in the en-suite on many occasions when he called to collect the rent. However,
she was unable to supply any specific dates. On being questioned by the Tribunal, the
Appellant Tenant conceded that she had only brought to the attention of the Landlord the
inadequate extraction of vapours in recent months. Other areas featured by Mr Ryan
were being aired for the first time. The Appellant Tenant also referred to the non
registration of her tenancy by the Respondent Landlord and the non provision of a Rent
Book.
Respondent Landlord’s case:
Evidence of, Alan McMurray on behalf of Landlord. (Referred to as the Respondent
hereafter)
The Respondent confirmed the magnitude of the new rent as advised to the Appellant
Tenant as being fair and equitable. He further indicated that the sum sought was
reflective of a discount having regard to local rents for comparable dwellings. He
submitted that the dwelling was a pre-1963 one ,was located on the top floor of the
house, was quiet , has a separate bedroom, has parking provided and has a garden for
use by the Tenant.
In support of his case for increasing the rent, the Respondent provided six examples of
one bed flats/apartments in the area and their current rents. The comparatives included
two studio apartments one of which is located in the building containing the Appellant’s
apartment and which when rented in May 2015 achieved a monthly rental of €850.00.The
second studio featured is rented at €950.00 per month.
As further evidence of the current values in the area, the Respondent produced into
evidence a copy of the contract signed by a new tenant on 1 September 2015 for a one
bed ,one bath flat in the same building as the Appellant Tenant and where the rent
agreed was €1050.00 per month. The Respondent stated that the last occasion that rent
was increased on the Tenant’s dwelling was 1 January 2014 and rents had increased
significantly since then.
Regarding the alleged breach of Landlords obligations, the Respondent said that the only
item previously raised as an issue by the Tenant was the lack of adequate extraction of
water vapour in the en-suite. In this regard the Respondent submitted that an extractor
fan is not required if there is a window. Other items referred to by the Appellant were
being raised by her for the first time and the Respondent had no opportunity to deal with
them.
Final submissions of the parties:
Respondent Landlord’s closing submission.
The Landlord present, Mr Keogh, said that he was willing to address such improvements
referred to earlier by the Appellant Tenant with immediate effect. He also confirmed that
any new rent increase would only become effective from 1 January 2016.
Appellant Tenant’s closing submission:
The rent increase is in excess of market rates.
6. Matters Agreed Between the Parties
Before inviting the parties to make their submissions the Chairperson said that the
Tribunal had read the documentation in relation to the case as circulated to the parties
and it appeared to the Tribunal that the following factual matters in relation to the tenancy
were not in dispute between the parties:
• The Tenancy commenced on 15 September 2005.
• The Tenant continues in occupation of the dwelling.
• The Tenant paid a deposit of €750.00
• Monthly rent is €700.00
• No rent arrears exist.
Both parties accepted that they were in agreement in relation to the foregoing matters.
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence
presented to it by the parties, the Tribunal’s findings and reasons therefor are set out
hereunder.
Finding 1: The Tribunal finds that the market rent in relation to the tenancy of the
Appellant Tenant at Flat 6, 159 Rathgar Road,Rathgar, Dublin 6 is €950.00 per month.
Reasons:
Part 3 of the Residential Tenancies Act 2004 provides for Rent and Rent Review. Section
19 of the Act provides that in setting the rent under a tenancy the rent for a dwelling
cannot be greater than the amount of the market rent for that tenancy at that time.
Section 20 of the Act provides that the rent may not be reviewed more frequently than
once in each period of 12 months. The Tribunal is satisfied that, based on the evidence
the previous rent review took place in January 2014, a period in excess of 12 months
had elapsed before the next rent review by the Landlords on 1 October 2015.
In relation to rent review, section 22 of the Act requires that at least 28 days before the
date from which the new rent is to have effect, a notice in writing is served by the landlord
on the tenant stating the amount of the new rent and the date it is to have effect.
The Tribunal is satisfied the correct period of notice was given to the tenant in relation to
the rent review by means of the letter dated 1 October 2015, which provided the rent
would be increased to €950.00 per month with effect from 1 November 2015. However,
the Tribunal must still consider whether the amount of the reviewed rent being claimed by
the Respondent is greater than the amount of the market rent for the dwelling at that time.
The term “market rent” is defined in section 24 of the Act as:
“the rent which a willing tenant not already in occupation would give and a willing landlord
would take for the dwelling, in each case on the basis of vacant possession being given,
and having regard to—
(a) the other terms of the tenancy, and
(b) the letting values of dwellings of a similar size, type and character to the dwelling and
situated in a comparable area to that in which it is situated.”
The Tribunal finds that the onus of proof is on the Respondent Landlord to satisfy the
Tribunal that the amount of the reviewed rent being claimed from 1 November 2015 is not
greater than the market rent at that time, or in other words equates to the market rent at
that time. It seems to the Tribunal section 19(1) of the Act is clear that in setting the rent
“an amount of rent shall not be provided for that is greater than the amount of the market
rent for the tenancy at that time”.
The Respondent’s agent has submitted a number of comparisons set out in his
submission to the RTB dated 15 December 2015. Two comparisons relate to studio
apartments and four relate to one-bedroom apartments located in the relevant area.
Grosvenor , Rathmines, Dublin6. I Bed 1 Bath Rent €1,200.00
Frankfort Avenue, Rathgar, Dublin 6. 1 Bed 1 Bath Rent €1,100.00
Grove Park, Rathmines, Dublin 6.( Studio) 1 Bed 1 Bath Rent € 950.00
159 Rathgar Road, Rathmines 1 Bed Studio Rent € 850.00 from May 2015.
No 77 Rathmines Road Upper, Dublin6. 1 Bed ensuite Rent € 950.00
159 Rathgar Road Rathmines 1 Bed 1 Bath Rent €1050.00.
The Tribunal finds that the Appellant has not put before the Tribunal any comparisons
with dwellings of a similar size, type and character situated in a comparable area, The
Appellant has only offered comparisons with three studio apartments featuring one
bedroom in conjunction with a quarter 4 2015 printout from the RTB Rent Index under the
heading, “Other”- one bed featuring a rental of €703.45 for Rathgar Dublin 6. No one bed
apartments in a comparable area were tendered to the Tribunal for review. The Tribunal
is not satisfied the Appellant has demonstrated that the reviewed rent is greater than the
market rent, or in other words equates to the market rent at the relevant time.
In the circumstances, the Tribunal is satisfied the increased rent claimed by the
Respondent of €950 per month is not greater than the amount of the market rent for the
tenancy and therefore is not in breach of section 19 of the Act.
Section 115(2) of the Act provides the Tribunal may declare whether or not an amount of
rent complies with section 19(1) of the Act. Where the Tribunal declares that an amount
does not so comply, the Tribunal’s declaration “shall” be accompanied by an indication by
the Tribunal as to what amount, in its opinion, would comply with section 19(1). The
Tribunal finds it has been provided with sufficient information by the Respondent to allow
the Tribunal express an opinion as to what amount of rent would comply with section
19(1) of the Act. In relation to the comparisons offered by the Appellant, the Tribunal
takes into account the submission on behalf of the Respondent that those studios may be
smaller in size than the Dwelling. While the Tribunal is expected to give an opinion in
relation to what amount would comply with section 19(1) of the Act, the Tribunal cannot
give an opinion without appropriate evidence on which to base its opinion. It seems to the
Tribunal appropriate evidence must relate to all the criteria specified in section 24 of the
Act.
The Tribunal may have regard to the Average Monthly Rent Report published by the
RTB.The Tribunal notes that the average monthly rent for one-bedroom flats in Rathgar
,Dublin 6 appears to have been increasing since quarter 1 of 2014 and is demonstrating
consistent growth quarter on quarter to quarter 4 2015 . In the period under review rents
for this type of dwelling has shown a growth of 25%
PRTB Average Monthly Rent Report (Euro) by Location, Property Type,
Number of Bedrooms and Quarter
2014Q1 2014Q2 2014Q3 2014Q4 2015Q1 2015Q2
2015Q3 2015Q4
Rathgar, Dublin 6
Apartment
One bed 853.74 903.01 917.93 959.81 973.09 1,007.90 1,037.12 1,069.78
Note: Location selection is based on population and dataset size.
A nil return (0.00) indicates insufficient data for that location.
By comparrisson the data for a one bed dwelling ( other flats )in the Rathgar, Dublin 6
area as per the PRTB Rent Index features increasing rent levels over the period reviewed
Q1 2014 to Q 4 2015 all be it at a slower rate, 15% over the period.
PRTB Average Monthly Rent Report (Euro) by Location, Property Type,
Number of Bedrooms and Quarter
2014Q1 2014Q2 2014Q3 2014Q4 2015Q1 2015Q2
2015Q3 2015Q4
Rathgar, Dublin 6
Other flats
One bed 621.18 628.43 646.19 659.97 682.08 690.83 713.68 719.70
Note: Location selection is based on population and dataset size.
A nil return (0.00) indicates insufficient data for that location.
In relation to the Average Monthly Rent Index, the Tribunal takes into account that this is
the “average” monthly rent. Depending on the size, type, character and the particular
location of a dwelling, and indeed the terms of the tenancy, the actual rent may be higher
or lower than the “average”. However, this information is a good indication as to whether
rents for particular properties in a particular location are increasing or decreasing at a
particular time. In the circumstances the Tribunal can only indicate that in its opinion the
market rent for the Dwelling in this case is €950.00 per month.
Finding 2: The Tribunal finds that the Respondent Landlords are not in breach of their
obligations in relation to the Appellant Tenant’s claim against them for breach of
obligations under Section 12(1)(b) of the Residential Tenancies Act 2004 with regard to
the standard and maintenance of the dwelling.
Reasons:
The Tribunal is satisfied that the Appellant Tenant did not make a complaint until the day
of the Tribunal about inadequate / no venting of kitchen odours.. While it was conceded
that the Appellant Tenant had raised the matter of a lack of ventilation in the bathroom, it
was only in recent times and the Tribunal accepts the commitment of the Respondents to
address the issues raised by the Appellant at the Tribunal . The Tribunal finds the
Respondents are not in breach of their obligation under section 12(1)(b) of the Act. The
Appellant’s complaint on this ground is not upheld.
8. Determination:
Tribunal Reference TR0216-001579
In the matter of Paula Murphy (Tenant) and Gerard Keogh, Tony Skinner (Landlord)
the Tribunal in accordance with section 108(1) of the Residential Tenancies Act
2004, determines that:
The Appellant Tenant’s application, regarding rent more than market rate in respect of
the tenancy of the Dwelling at Flat 6, 159 Rathgar Road, Rathgar, Dublin 6 is not
upheld. The Tribunal finds that the market rent in relation to the tenancy of the
Appellant Tenant at the said dwelling is €950.00 per month with effect from 1 January
2016.
The Respondent Landlords are not in breach of their obligations under Section 12
(1)(b) of the Act in respect of the tenancy of the dwelling at Flat 6, 159 Rathgar Road,
Rathgar, Dublin 6.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
17 April 2016.
Signed:
Thomas Reilly Chairperson
For and on behalf of the Tribunal.

Secrii v Tennant

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0115-000993 / Case Ref No: 1014-14829
Appellant Tenant: Vladislav Secrii, Oxana Secrii
Respondent Landlord: Certain Assets of Charles O’Neill (in Receivership), Certain Assets of Rosaleen O’Neill (in Receivership), Michael McAteer (Receiver), Stephen Tennant (Receiver)
Address of Rented Dwelling: Iona, Old Connaught Avenue, Bray , Wicklow,
Tribunal: Aidan Brennan (Chairperson)
Vincent P. Martin, Finian Matthews
Venue: Tribunal Room, PRTB, Floor 2, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 24 April 2015 at 2:30
Attendees:
Vladislav Secrii, Appellant, Tenant.
Oxam Secrii, Appellant, Tenant.
Charles O Neill, Respondent, Landlord.
Rosaleen O Neill, Respondent, Landlord.
Rebecca Keane, Representative, Landlord.
Alan Fitzgerald, Representative, Landlord.
In Attendance:
Gwen Malone Stenographers
1. Background:
On 16/10/2014 the Landlord made an application to the Private Residential Tenancies Board (the PRTB) pursuant to Section 76 of the Act. The matter was referred to an Adjudication which took place on 24/11/2014. The Adjudicator, in the matter of Michael McAteer and Stephen Tennant (Joint Receivers) for and on behalf of Specific Assets of Charles and Rosaleen O’Neill (In Receivership) and Vladisav [sic] and Oxana Secrii (Respondent Tenants), in accordance with section 97(4)(a) of the Residential Tenancies Act 2004, (the Act), determined that:
1. The Notice of Termination served on 7th August 2014, by the Applicant Receiver on the Respondent Tenants, in respect of the tenancy of the dwelling at Iona House, Old Connaught Avenue, Bray, County Wicklow, is valid.
2. The Respondent Tenants, and all persons residing in the above dwelling, shall vacate and give up possession of the above dwelling within 28 days of the date of issue of the Order.
3. The Respondent Tenants shall pay the total sum of €5500.00 to the Applicant Receiver [sic], by way of 10 consecutive monthly instalments at the rate of €550.00 per month, on the 28th day of each month, commencing the next month after the issue of the Order. This sum represents rent arrears of €5500.00 in respect of the tenancy of the dwelling at Iona House, Old Connaught Avenue, Bray, County Wicklow.
4. The enforcement of the Order for such payment of €5500.00 will be deferred and the total sum owing will be reduced by the number of monthly instalments of €550.00 made by the Respondent Tenants to the Applicant Receiver, on each due date, until such time as the sum of €5500.00 has been paid in full. For the avoidance of doubt any default in the payment of the monthly instalments of €550.00 shall act to cancel any further deferral and the balance due at the date of default shall immediately become due and owing to the Applicant Receiver.
5. The Respondent Tenant shall also pay any further rent outstanding from 24th November 2014 (date of hearing), at the rate of €1350.00 per month or proportional part thereof at the rate of €44.38 per day, unless lawfully varied, and any other charges as set out in the terms of the tenancy agreement for each month or part thereof, until such time as they vacate the above dwelling.
6. The Applicant Receiver shall refund the entire of the security deposit of €1000.00 to the Respondent Tenants, on gaining vacant possession of the above dwelling, less any amounts properly withheld in accordance with the provisions of the Act.
An appeal was received from the tenants on 02/01/2015. The grounds of the appeal were rent arrears, unlawful termination of tenancy (Illegal eviction) and breach of landlord obligations. In addition the tenants appeal rejected some of the findings of fact made by the adjudicator and added that they believed that not all of their evidence was taken into account.
This appeal was approved by the Board of the PRTB on 09/01/2015.
The PRTB constituted a Tenancy Tribunal and appointed Aidan Brennan, Vincent P. Martin and Finian Matthews as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Aidan Brennan to be the chairperson of the Tribunal (the Chairperson).
The Parties were notified of the constitution of the Tribunal and provided with details of the date, time and venue set for the hearing.
On 24/04/2015 the Tribunal convened a hearing at the Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
PRTB File
3. Documents Submitted at the Hearing Included:
The tenant enquired whether the lease and a corresponding letter dated 01 November 2011 were before the Tribunal. The Chairperson confirmed that these documents were in the Tribunal bundle and that there was no need to submit copies.
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what capacity they were attending the Tribunal. The Chairperson confirmed with the parties that they had received the relevant papers from the PRTB in relation to the case and that they had received and understood the PRTB document titled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was a formal procedure but that it would be held in as informal a manner as was possible; that the persons who appealed (the Tenants) would be invited to present their case first; that there would be an opportunity for cross-examination by the respondent landlords agent; that the respondent landlords agent would then be invited to present his case, and that there would be an opportunity for cross-examination by the tenants. The Chairperson said that members of the Tribunal might ask questions of both parties from time to time. The Chairperson explained that both parties would be given an opportunity to make a final submission.
The Chairperson said that all evidence would be taken on oath or affirmation and be recorded by the official stenographer present and reminded the Parties that knowingly providing false or misleading statements or information to the Tribunal was an offence punishable by a fine of up to €4,000 or up to 6 months imprisonment or both. (Parties giving evidence were sworn in.)
The Chairperson advised the parties that as a result of the Hearing that day, the Board would make a Determination Order which would be issued to the parties and could be appealed to the High Court only on a point of law [reference section 123(3) of the 2004 Act].
5. Submissions of the Parties:
Appellant Tenants:
Evidence of Vladislav Secrii.
The tenant stated that he agreed a rent of €250 per month with the landlord in circumstances where the dwelling was unfit for human habitation. He stated that he agreed to refurbish the dwelling and that this was in lieu of paying the full market value rent to the landlord. He said that he was a self-employed individual who refurbished the dwelling at his own expense; with his own labour and the assistance of friends and made it a home for himself and his wife and their two children. He referred to a letter dated the 1st November 2011 (separate to the lease) which stated that rent was fixed in the amount of €250.00 per month for 57 Months from 01 November 2011 and to the lease agreement also dated 1st November 2011 which stated that the tenure of the lease was 57 months commencing on 25 June 2012.
The tenant stated that he received the keys on 1 November 2011 and proceeded to refurbish the property. The house was scheduled for demolition and redevelopment but
was structurally sound. He repaired the windows and secured the property from minor vandalisation. He was responsible for all the necessary works inside and outside. He repaired a serious external sewage problem and renovated the garden. He changed many items inside including additional electrical wiring for the cooker, a new water storage tank, shower pump and ancillary pipework. He did any necessary repairs, installed new doors and tiling and redecorated the property. In line with a clause in the lease agreement the house was let completely unfurnished; there were no appliances no carpets and no fixtures and fittings. The tenant supplied and fitted all of these items including curtains and second hand kitchen units.
The tenant submitted that the rent review is invalid in circumstances where the lease stated that the tenancy was for a fixed term of 57 months commencing on 25 June 2012 and that the rent was fixed for 57 months commencing on the 01 November 2011. The tenant referred to a letter of agreement with the landlord dated 1 November 2011 which stated that the rent was fixed in the sum of €250 for a 57 month period. In response to a question from the Tribunal as to why he needed the agreement letter dated 01 November 2011 when he had a lease agreement which effectively said the same thing as the letter; he responded that the lease agreement was complicated and he sought the letter as a simple clarification of the terms of the rent.
Evidence of Charles O’Neill.
Mr O’Neill confirmed that he was the landlord and signatory to both the letter dated 01 November 2011 and the lease agreement of the same date. He endorsed everything that the tenant had said in evidence. He outlined that he had bought the house around 2008 with a view to demolition and redevelopment but planning difficulties arose. In order to recoup some of his investment he let the property under the terms that the tenant would pay cash rent of €250 per month for 57 months and be responsible for bringing the house up to a habitable standard.
He estimated that the rent would have been in the region of €1000 per month had the house been up to standard at the commencement of the tenancy. On the basis of simple sums he said that the value of the tenants’ contribution in labour and materials over the term of the lease would be in the region of €40,000.
Respondent Landlord:
Evidence of: Mr Alan Fitzgerald on behalf of the Receivers:
Mr Fitzgerald stated that a written fixed term lease did not preclude the landlord from increasing the rent. There was nothing in the lease agreement to waive any right to a rent review under the Act and accordingly section 21 of the Act applied. Section 21 provides that where a lease agreement does not provide for a rent review, either party may require a review and set an appropriate rent under that review. Such a review was carried out and he referred to the various documents in the Tribunal papers to substantiate the rent set under that review and the letter sent to the tenant dated 26 May 2014 which increased the rent from €250 to €1350 per month. The letter provided 28 days notice of the increase and included a provision that any challenge to the new rent must be referred to the PRTB within 28 days of the letter. He stated that on 26 June 2014 that the tenants failed to discharge the rent in full. He outlined the sequence of letters sent to the tenants by post and by hand; a warning letter dated 7 July 2014 notifying the tenants of their obligation to pay rent, followed by a 14 day warning letter dated 18 July 2014 and a notice of termination on 7 August 2014.
He said that the tenants did not dispute the rent review notice or the notice of termination by their referring a dispute to the PRTB. He said that the rent increase was outstanding to date and the last rent paid was €250 up to the month of February 2015. He submitted that the tenants are over holding and are liable for the total rent arrears.
6. Matters Agreed Between the Parties
Mrs O’Neill is not a landlord in these proceedings.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence presented to it by the parties, the Tribunal’s findings and reasons therefor are set out hereunder.
7.1 Finding:
The lease dated the 1 November 2011 is valid; the fixed term of the lease 57 months from 25 June 2012 fixes the duration of the tenure only.
Reason:
The date of the lease pre-dates the appointment of the receivers. The tenant received the keys on 01 November 2011 set about refurbishment and moved in shortly thereafter. The lease provides for a commencement date of 25 June 2012 and notwithstanding that the lease refers to a “part 4” tenancy, the tenant is entitled, under the provisions of section 26, to the more beneficial terms of the lease than those provide by Part 4 of the Act. The “more beneficial terms” provision of section 26, [which section is not affected by section 54], refers only to Part 4 of the Act, which deals with Security of Tenure and does not reach back to affect Part 3 which deals with rent and rent reviews. The more beneficial terms of the lease in this case were that the landlord was not entitled to terminate the tenancy over the 57 month period of duration of the lease, unless there was a breach of obligations on the part of the Appellant Tenant e.g. in relation to the payment of rent.
7. 2 Finding:
The rent review dated 26 May 2014 setting the new monthly rent in the sum of €1350.00 is valid.
Reason:
The lease agreement does not restrict the ability of the landlord to seek a rent review during the term of the tenancy. A fixed term lease does not preclude a landlord from increasing the rent, provided the increase is in accordance with the statutory rent review provisions, in particular section 19 to 24, of the Residential Tenancies Act 2004.
The landlord was not precluded from carrying out a rent review by the lease. The rent review is supported by appropriate comparisons with the letting values of dwelling of a similar size, type and character to the dwelling situated in a comparable area to the one in which the dwelling is situated and sets the monthly rent at €1350.00 from the 25th June 2014. The tenants did not refer a dispute on the question of market rent to the PRTB. The Tribunal considered whether the 57 month fixed rent agreement represented an “opting
out” of the terms of the Act or the provision of a more favourable term(s) for the tenants in the light of section 18 of the Act. Section 18 has application only insofar as sections 12 and 16 are concerned; there is no direct application or reference to section 21. A rent fixed for a term longer than 12 months would favour a tenant in a situation where rents were increasing but would be unfavourable to a tenant in a situation where rents were falling. The inverse situation would occur for a landlord. The provisions of section 21 apply in equal terms to both landlord and tenant and in this instance supersede the provisions of both the lease and the letter dated 01 November 2011 which purported to fix the rent in the cash amount of €250 per month for 57 months.
7.3 Finding:
Rent arrears in relation to the tenancy have accrued in the sum of €12492.00
Reason:
The tenants did not pay the increase in the rent (€1350- €250 = €1100) for the period 25 June 2014 to 25 February 2015 that is 9 months at €1100 per month and did not pay any rent for March 2015 giving rise to further arrears of €1350. Rent accruing to the date of the Tribunal is calculated for 28 days in the sum of €1242. The arrears total €12492. On the basis of the landlord’s evidence the Tribunal accepts that the effective full monthly rent on commencement of the tenancy was €1000. Through a contractual arrangement between the tenant and the landlord this was paid by way of cash €250 and labour and materials valued at €750 However, no evidence was given of the number of months for which rent was paid in this fashion, nor for that matter was evidence given relating to the capitalised value of the labour and materials at either the date of the rent review or the Tribunal date. The only figure given in this regard is that given by the landlord, in the bare estimate of €40,000 capitalised value over the term of the lease. In the absence of clear and compelling figures to support any capitalised value the Tribunal finds in favour of the receivers that arrears accrued in the sum of €12492.00.
7.4 Finding:
The notice of termination dated the 7th of August 2014 is valid and the tenants are overholding since 5 September 2014.
Reason:
The notice of termination complied with the provisions of the Act.
7.5 Finding:
The landlord is in breach of his obligations under section 12(1)(b)(ii) of the Act in failing to carry out repairs and replacement of fittings necessary to ensure compliance with the Housing (Standards for Rented Houses) Regulations in particular Article 6 (sanitary facilities), Article 7 (heating facilities), Article 8 (Food preparation and storage and laundry), Article 10 (lighting), Article 11 (fire safety ) and Article 13 (electricity and gas).
Reason:
The tribunal finds that the evidence relating to the arrangement of a reduced rent paid in cash and rent paid by way of the tenants’ labour and supply of materials extended to making the dwelling habitable in terms of section 12(1)b ii (interior repairs).
Insofar as Articles 6, 7, 8, 10, 11 and 13 of the Housing (Standards for Rented Houses) Regulations are concerned the lease agreement did not provide more favourable terms
than those that apply by virtue of section 12 of the Act and fell far short of the requirement in the regulations that all rental accommodation shall contain self- contained sanitary facilities, a fixed appliance or appliances capable of providing adequate heating and the following self-contained facilities for food preparation, storage and laundry:
A four ring hob with oven and grill; provision for the effective and safe removal of fumes to the external air by means of cooker hood or an extractor fan, a fridge and freezer, a microwave oven, a sink with a draining area, an adequate number of kitchen presses for food storage purposes and a washing machine.
All rental accommodation must also have suitable and adequate means of artificial lighting, must have a fire blanket and either a mains operated smoke alarm or at least two 10 year self-contained battery-operated smoke alarms; installations in the house for electricity and gas supply must also be maintained in good order.
On the uncontested evidence before the Tribunal it was clear that the dwelling was not fit for human habitation at the commencement of the tenancy and that none of these requirements were complied with by the landlord. The Tribunal awards damages of €5,000.00 to the Appellant Tenants in this regard.
8. Determination:
Tribunal Reference TR0115-000993
In the matter of Vladislav Secrii, Oxana Secrii [Appellant Tenants] and Michael McAteer (in his capacity as Receiver over certain assets of Charles and Rosaleen O’Neill), Stephen Tennant (in his capacity as Receiver over certain assets of Charles and Rosaleen O’Neill) [Respondent Receivers] the Tribunal, in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1) The Notice of Termination served on 7th August 2014, by the Respondent Receivers on the Appellant Tenants, in respect of the tenancy of the dwelling at Iona, Old Connaught Avenue, Bray, County Wicklow, is valid:
2) The Appellant Tenants, and all persons residing in the above dwelling, shall vacate and give up possession of the dwelling within 56 days of the date of issue of this Order.
3) The Appellant Tenants shall pay the total sum of €7,492.00 to the Respondent Receivers, by way of 8 consecutive monthly instalments at the rate of €1,000.00 per month, for the first seven instalments and €492.00 for the final instalment, on the 28th day of each month, commencing the month next after the issue of the Order. This sum represents rent arrears of €12492.00 having deducted €5,000.00 damages for the consequences of breach of landlord obligations, in respect of the tenancy of the dwelling at Iona, Old Connaught Avenue, Bray, County Wicklow;
4) The enforcement of the Order for such payment of €7,492 will be deferred and the total sum owing will be reduced by the number of monthly instalments of €1,000.00 made by the Appellant Tenants to the Respondent Receivers, on each due date, until such time as the sum of €7492.00 has been paid in full. For the avoidance of doubt any default in the payment of the monthly instalments of €1,000.00 shall act to cancel any further deferral and the balance due at the date of default shall immediately become due and owing to the Respondent Receivers.
5)The Appellant Tenants shall also pay any further rent outstanding from 25th April 2015 (date of Tribunal), at the rate of €1350.00 per month or proportional part thereof at the rate of €44.38 per day, unless lawfully varied, and any other charges as set out in the terms of the tenancy agreement for each month or part thereof, until such time as they vacate the above dwelling;
6)The Respondent Receivers shall refund the entire of the security deposit of €1000.00 to the Appellant Tenants, on gaining vacant possession of the above dwelling, less any amounts properly withheld in accordance with the provisions of the Act.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 17/05/2015.
Signed:
Aidan Brennan Chairperson
For and on behalf of the Tribunal.

Tierney v Curry

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001648 / Case Ref No: 1115-22530
Appellant Tenant: Michelle Tierney, James Higgins
Respondent Landlord: Leeann Curry
Address of Rented Dwelling: 10 Parkwood, Roschoill, Drogheda , Louth,
A92XWH7
Tribunal: Aidan Brennan (Chairperson)
Dairine Mac Fadden, Thomas Reilly
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 22 April 2016 at 10:30
Attendees: James Higgins (Appellant Tenant)
Michelle Tierney (Appellant Tenant)
Brian Roche (Appellant Tenants Solicitor)
Ken Morgan, Champion Lettings (Respondent
Landlord’s agent)
Leeann Curry (Respondent Landlord)
In Attendance: RTB appointed stenographer
1. Background:
On 19 November 2015 the Tenant made an application to the Residential Tenancies
Board (the RTB) pursuant to Section 76 of the Residential Tenancies Act 2004 (the Act).
The matter was referred to an Adjudication which took place on 26 January 2016. The
Adjudicator determined that:
(1) The Applicant Tenants’ application, regarding rent more than market rent, in
respect of the tenancy of the dwelling at 10 Parkwood, Roschoill, Drogheda, Co.
Louth is not upheld.
On 3 March 2016 the tenants appealed to the Tribunal against the Adjudicators
determination on the ground of “rent more than market rate”. On 10 March 2016 the
Board of the RTB approved referral of the dispute to the Tribunal.
The RTB constituted a Tenancy Tribunal and appointed Dairine Mac Fadden, Thomas
Reilly and Aidan Brennan as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Aidan Brennan to be the chairperson of the Tribunal (the Chairperson).
On 04 April 2016 the Parties were notified of the constitution of the Tribunal and provided
with details of the date, time and venue set for the hearing.
On 22 April 2016 the Tribunal convened a hearing at the Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
NA
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the parties
that they had received the relevant papers from the Residential Tenancies Board (the
RTB) in relation to the case and that they had received the RTB document titled “Tribunal
Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the appellant tenants would be invited to present their case first; that there would be an
opportunity for cross-examination by the respondent landlord; that the respondent
landlord would then be invited to present her case, and that there would be an opportunity
for cross-examination by the appellant tenants. If anything new was raised in the
respondent landlord’s evidence the appellant tenants would be afforded an opportunity to
respond. The Chairperson explained that following this, both parties would be given an
opportunity to make a final submission.
The Chairperson said that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and he reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the parties that as a result of the Hearing, the Board of
the RTB would make a Determination Order which would be issued to the parties and
could be appealed to the High Court on a point of law only.
The parties intending to give evidence were affirmed / sworn in.
The solicitor for the tenants said that he had received an additional 12 page document,
titled Tribunal Case file 2, submitted by the landlord at short notice and that he would
need an adjournment of up to 10 days to properly address the content. The landlord
stated that the documents in question had been submitted before the 5 day deadline
mentioned in the “Tribunal Procedures” document. The Tribunal members had not
received the documents in question. These documents were comprised mostly of website
information in relation to property rents and the opinions, concerning rental rates, of
letting agents in the Drogheda area. In the interest of fairness the Tribunal ruled that the
documents would not be accepted into evidence by the Tribunal, but that the landlord
could give oral evidence as to the content by way of informed opinion while using the
documents as an aide memoir. Accordingly the request by the tenants’ solicitor for an
adjournment was not granted.
5. Submissions of the Parties:
Appellant Tenants:
Evidence of James Higgins:
The tenant gave evidence in relation to the various communications concerning rent
increases from the landlord’s agent and from the landlord. He outlined his replies to the
various communications together with his observations on the validity of the
correspondence. The points made, germane to the questions of rent review dates and
rent review notices are as follows:
The tenants received, inter alia, four communications as follows:
1. A letter dated 20 August 2015 setting the increased (sic) rent at €850 per month with
effect from the rent due date in October 2015 (the 10th). The tenant pointed out that this
was not an increase as they had paid rent of €850 since May 2013 and said that this
could be interpreted as meaning that they had been paying rent more than market value
up to that point. The Tribunal clarified the issue of market rent as defined in section 24 of
the Act. Towards the end of the hearing the landlord’s agent stated that this letter was
issued by mistake.
2. An email dated 7 September enclosing a letter dated 20 August 2015 setting the rent
at €1050 with effect from the rent due date in October 2015 (the 10th). The tenants did
not accept this notice received by email as it was not in writing. (The agent for the
landlord contended that this letter was sent by post)
3. A letter dated 24 September 2015 setting the rent at €1050 per month with effect from
the rent due date in November 2015 (the 10th). The tenants did not refer a dispute to the
PRTB in relation to this notice.
4. A letter dated 22 October 2015 setting the rent at €1400 per month effective from 10
December 2015. The tenants referred a dispute to the PRTB, in respect of this notice, on
19 November 2015.
The tenant gave further evidence in relation to market rent referring to the RTB rent index
showing figures for Q2 and Q3 of €808 and €838 per month for a four bedroom S/D in
Drogheda. He said that the index did not show any evidence of an increase of 65% and
that there was no evidence to support a figure of €1400 per month. He referred to two
similar properties for sale at asking prices of €255,000 for a 4BS/D and €325,000 for a 4B
detached and said that such a dramatic increase in the rent should be proven by the
landlord. He referred to the various property details on the case file distinguishing the
locations, the nature of the properties and the fact that asking prices were being used by
the landlord in support of her case when in fact these properties may have been let for
less than the asking price, may have had the asking prices reduced and in one particular
case the property seemed to be still vacant.
Evidence of Michelle Tierney:
The tenant gave evidence which was similar and supportive of the evidence of the tenant
James Higgins. She referred to particular property details in the case file including a 3BR
detached property with garage on the Dublin Road for rent in January 2016 at €1200 per
month. She referred to the RTB rent index and the DAFT rent index in support of her
argument that the rent of €1400 per month was excessive and relied on the figures in the
indexes to support her claim that the rent should be €850 per month.
The tenants closing submission was to the effect that the evidence presented by the
landlord in support of the rent increase was not in the category of evidence required in
that it was not evidence relating to dwellings of similar size, type and character situated in
a comparable area. The landlord’s evidence in relation to locations on the north-side
versus the south-side of Drogheda was equivocal. The rent should be set at a figure of
€850 per month to take effect from “now” so that the tenants might have the benefit of a
fixed rent for the maximum period.
Respondent Landlord:
Evidence of Leeann Curry
The landlord gave evidence to the effect that the dwelling was her home prior to the
letting; that it was finished to a very high standard in terms of fixtures and fittings and that
the furniture was of a very high quality. She said it was not comparable to dwellings
mentioned by the tenants in relation to size, type and character; it was of a higher
specification and that Roschoill was the site of an old apple orchard and the estate was a
sought after area affording quick access to the Dublin Road. She indicated that she
sought tenants who would match the high standard of the dwelling and who would look
after the dwelling which she intended to occupy at some stage in the future. She said that
she had recently sought advice from three auctioneers and said that they advised her that
the market rent was in the region of €1450 to €1500 due to high demand. She said that
the RTB index is not specific as it is too broad an average covering the Drogheda area.
She referred to documents on the case file and a recent advertisement on DAFT for a
property 4 Bed S/D at Grangerath asking €1500 per month.
Evidence of Ken Morgan:
The landlord’s agent gave evidence to the effect that he had let a similar property at
Millmount Abbey in December 2015 on a six month lease at a rent of €1600 per month.
He referred to the documents on the case file in support of the market rate of €1400 per
month and under cross examination he referred to the names of other letting agents who
had been consulted in arriving at the opinion that the current market rate was €1450 to
€1500 per month. In response to a question from the solicitor for the tenants as to why
the rent of €1050 had been suggested he said that he did not investigate the market rate
at that time but had said that it should be higher than €1050 but a turnover in tenants was
not wanted. This was a reference to the agent’s email dated 8h September reiterating that
the rent was €1050 while stating at the same time that the €1050 is still below the current
rental market value.
That email also referred to a property for let in Roischoil (sic) for €1400 pm.
He also said that the letter dated 20 August 2015 (the first letter) setting the increased
(sic) rent at €850 per month with effect from the rent due date in October 2015 was
issued by mistake. His closing summary was that the rent should be set at €1400 per
month effective on and from 10 December 2015.
6. Matters Agreed Between the Parties
Tenancy commenced: 10 May 2013
Rent payment/due date: 10th day of the month
Rent at commencement: €850.00
Rent being paid at present €850.00 (under deduction of tax)
Dwelling address: 10 Parkwood, Roschoill, Drogheda.
Tenants are: Michelle Tierney and James Higgins
Number of occupants: Two
Rent arrears at rate of €850 per month. Nil.
Brief description of dwelling: 4BR, SD Furn. OSP x 1Car,
Gardens front and rear.
The issues for determination by the Tribunal are: What is the market rent and from what
date should that market rent take effect?
7. Findings and Reasons:
Having considered the documentation before it and having heard and considered the
evidence presented by the parties, the Tribunal finds that:
• The rent review notified to the tenants by letter dated 22 October 2015, rent €1400
per month to take effect on 10 December 2015, is in contravention of section 20 of the
Residential Tenancies Act 2004 which deals with the frequency with which rent reviews
may occur and is not valid.
• The rent review date is 20 August 2015.
• The monthly rent set in respect of the tenancy of the dwelling on the review date of
20 August 2015 of €1050.00 is not greater than the amount of the market rent for that
tenancy at that time.
• The notice letter dated 24 September 2015 setting the rent at €1050 per month with
effect from the rent due date in November 2015 (the 10th) is valid.
• The market rent for the tenancy of the dwelling at 20 August 2015 is €1050 per
month.
• The new rent is to take effect on and from 10 November 2015 in
accordance with the notice dated 24 September 2015.
Reasons:
The appropriate date for setting the market rent is 20 August 2015 being the date on
which the first rent review notice albeit a mistake, was served. The Tribunal considers the
mistake to have been the inclusion of the figure of €850 as an increased or new rent
when it clearly was not an increase and not a new rent. A review had taken place but had
not been correctly communicated to the tenants. This review date of 20 August 2015 is
copper-fastened by the fact the second communication from the landlord’s agent, an
email dated 7 September enclosing a letter dated 20 August 2015 setting the new rent at
€1050 with effect from the rent due date in October 2015 was sent to the tenants by the
landlord’s agent. Simply put this notice included the correct figure of €1050, as intended
in the first notice and clearly shows the notice date as 20 August 2015 and the new rent
effective from the rent due date in October 2015. The tenant had objected to this notice
as not being in writing and this led, presumably, to a letter dated 24 September 2015
setting the rent at €1050 per month with effect from the rent due date in November 2015
(the 10th). In effect the letter dated 24 September 2015 was a notification of the
same review but the corrected notice had the effect of pushing the effective date for the
new rent on by one month to November 2015.
The fourth notification is not valid as it is in contravention of section 20 of the Act which
provides that a review of rent may not occur more frequently than once in each period of
12 months. A case was not made concerning the provisions of section 20(3) (substantial
change to the accommodation)
Section 78 (1) (c) of the Act provides for the making of a complaint to the RTB as regards
the time at which a rent review should take place or the amount of rent that should be
determined on foot of that review. The complaint referred to the RTB in this case was in
respect of “Rent more than market rate” and was not specifically about the “Time at which
a rent review should take place”.
Section 115 of the Act gives a Tribunal the power, inter alia, to make declarations or give
directions for the purpose of providing relief to one or more of the parties. This power
includes the giving of a direction under section 115(2) a, that a specified amount of rent
shall be paid on or on and from or by a specified date.
Where the Tribunal finds that an amount of rent is not in compliance with section 19 of the
Act it must, in accordance with section 115 (2) (b) of the Act , give an indication of what
amount in its opinion would comply with section 19. In general terms rent is not in
compliance with section 19 if the rent set is in excess of market rent. In this case the rent
review set out in the fourth communication from the landlord to the tenant of €1400 is
invalid, is not lawful under part 3 of the Act and has no effect either as regards a review or
the date on which the new rent is to have effect. The Tribunal notes that the notice letter
dated 24 September 2015 setting the rent at €1050 per month with effect from the rent
due date in November 2015 (the 10th) was not disputed by the tenants, they did not refer
a dispute to the PRTB in relation to this notice and the notice is valid in that it meets the
requirements of the Act. Ordinarily this valid notice would set the rent at €1050 per month
as it complies with the Act and was not referred as a dispute to the RTB. However this
notice was not accepted by the tenants nor had it been accepted by the landlord as she
had issued a superseding but invalid notice for €1400 per month. At the commencement
of the Tribunal both parties had agreed that the Tribunal should set the rent and the
effective date of the rent increase.
The Tribunal therefore uses the power specifically set out in section 115(2) a, in making
its determination as to the market rent and the date on and from which that rent is to have
effect.
Market rent is defined in section 24(1) of the Act as follows: “market rent, in relation to
the tenancy of a dwelling, means the rent which a willing tenant not already in occupation
would give and a willing landlord would take for the dwelling, in each case on the basis of
vacant possession being given, and having regard to the other terms of the tenancy, and
the letting values of dwellings of a similar size, type and character to the dwelling and
situated in a comparable area to that in which it is situated”.
Having considered all the evidence before it, including the documents on the case file, the
Tribunal is of the opinion that the monthly rent in respect of the tenancy of the dwelling on
the review date of 20 August 2015 was €1050. This represents an increase of 23.5% over
the rent set at the commencement of the tenancy some 2 years and three months earlier.
The landlord’s evidence was that the rent of €850 per month was significantly below
market rate at the commencement as she wanted tenants of a professional background
who she believed would look after the property. Nevertheless it was an agreement at
arm’s length and accordingly €850 per month was the market rate for that dwelling at that
time.
In the letters sent to the tenants one by email dated 7 September enclosing the letter
dated 20 August 2015 setting the rent at €1050 per month from October 2015 and the
letter dated 24 September 2015 setting the rent at €1050 per month with effect November
2015, it is clearly stated that the rent of €1050 is in line with the current rental market.
Both letters are on paper headed “Champion Lettings” and appear to be signed on behalf
of Champion Lettings.
A further email was sent by the agent to the tenants on 8 September 2015 reiterating that
the rent was €1050 per month while at the same time stating that €1050 was below the
current market rent.
This email (8 Sept.) referred to a 4 bed property in Roischoill (sic) advertised on DAFT for
€1400 per month. It seems to the Tribunal, based on the attachment reference in the
email that the letter dated 20 August 2015 increasing the rent to €1050 was also sent with
that email as an attachment.
No evidence was given by the landlord or on her behalf to say that both letters, that is to
say the letter of 20 August 2015 increasing the rent to €1050 which was sent twice if not
three times and the letter of 24 September 2015 also increasing the rent to €1050 were in
error as regards the amount of rent €1050. The landlord had, in addition to these several
communications, sent an email to the tenants on 4 October 2015 stating that she had
instructed Champion Lettings to increase the rent to €1050.
Faced with the decision as to what the market rent was at the 20 August 2015 the
Tribunal concludes that the earlier or contemporaneous evidence in the landlord’s agent’s
communications in August and September is the best evidence and best reflects the
opinion of the landlord’s agent of what the market rent was at that time for that dwelling.
That figure, €1050 per month was stated many times in the various communications sent
to the tenants. Evidence was given that the first review notice which was the letter dated
20 August 2015 setting the increased (sic) rent at €850 per month with effect from
October 2015 was a mistake. No such mistake was claimed in relation to the rent of
€1050 in the several subsequent emails and letters.
The tenants relied on the RTB rent index which to their mind indicated that the rent of
€850 being paid by them was the market rate. They did not dispute the landlords
evidence as to the high standard and specification of the dwelling nor did they make a
case that the dwelling was average and thus would command only an average rent,
whereas the landlord’s evidence was that the dwelling being well above average would
command a rent above the average. On the simple basis that an average rent is the
intermediate point between extremes it would apply to the average dwelling and the
Tribunal is satisfied on the evidence of the landlord that the dwelling in question
represents the upper end of the market and would thus command a corresponding rent.
8. Determination:
Tribunal Reference TR0316-001648
In the matter of Michelle Tierney, James. Higgins (Tenant) and Leeann Curry
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The rent review notified to the tenants by letter dated 22 October 2015, for the
tenancy of the dwelling at Parkwood, Roschoill, Drogheda, Co. Louth setting the rent
at €1400 per month to take effect on 10 December 2015 is invalid.
2. The monthly rent of €1050.00 per month set by the rent review notice dated
24 September 2015, to take effect from 10 November 2015 for the tenancy of the
dwelling at Parkwood, Roschoill, Drogheda, Co. Louth is valid.
3. The monthly rent set in respect of the tenancy of the dwelling on the review
date of 20 August 2015 of €1050.00 is not greater than the amount of the market rent
for that tenancy at that time.
4. The Appellant Tenants shall pay rent in the sum of €1050.00 per month to the
Respondent Landlord, in respect of the tenancy of the above mentioned dwelling, on
and from 10 November 2015, unless lawfully varied, together with any other charges
or taxes set out in the tenancy agreement.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
07 May 2016.
Signed:
Aidan Brennan Chairperson
For and on behalf of the Tribunal.

Doyle v Private Residential Tenancies Board

Reported In: [2015] 11 JIC 1006, 2015 WJSC-HC 6631
Neutral Citation: [2015] IEHC 724
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Ms. Justice Baker

The first ground of appeal: no disagreement regarding rent arrears
22
22. The first point of appeal is that there was no “disagreement” or dispute between the appellant and his landlord with regard to arrears of rent. The applicant says that the sole dispute referred by him to the adjudicator, and on appeal to the Tribunal, was with regard to the validity of the termination notice. He succeeded in his appeal and the Tribunal held that the termination notice was invalid for absence of proper procedure or notice. The applicant argues that there was before the Tribunal, and at first instance before the adjudicator, no dispute within the meaning of s. 75 of the Act which allows a determination that he was in arrears of rent.

23
23. The Act allows a party or parties to refer to dispute resolution certain “disagreements” as defined in s. 75 (3) as follows:

“For the purposes of subsection (2) ‘disagreement’ shall be deemed to include-”

(a) any issue arising between the parties with regard to the compliance by either with his or her obligations as landlord or tenant under the tenancy,

(b) any matter with regard to the legal relations between the parties that either or both of them requires to be determined (for example, whether the tenancy has been validly terminated),

and, without prejudice to the generality of the foregoing, shall be deemed to include a claim by the landlord for arrears of rent to which the tenant has not indicated he or she disputes the landlord’s entitlement but which it is alleged the tenant has failed to pay.”

24
24. The applicant argues that there was no claim for arrears of rent to which the deeming provisions apply as he had indicated that he disputed the right of the receiver to collect the rent. He says, however, that the Tribunal’s jurisdiction is as a matter of law confined to the dispute raised by a person or persons who submit a dispute to it, and that its power to determine that dispute is constrained by the matters thus defined. He had not argued that there were no arrears, but rather that the notice did not give sufficient time and was not in compliance with the Act of 2004.

25
25. The respondent and the notice party argue that the question is not one of law, and at best is a question of jurisdiction, namely whether the Tribunal has a jurisdiction to entertain a claim for arrears of rent, and whether it exceeded the jurisdiction vested in it by virtue of the submission to dispute resolution by the applicant.

26
26. I consider that counsel for the PRTB is correct that the issue of the extent of the jurisdiction of the Tribunal is one which raises points amenable to judicial review. This does not however mean, for this present purpose, that the matter may be raised only by judicial review, and I consider that a point of law is engaged, namely whether there was as a matter of law, and having regard to the statutory provisions, a “disagreement” before the Tribunal that the rent was in arrears and directing payment of that rent. There is also a mixed question of law and fact whether the Tribunal correctly approached the hearing as one involving the question of arrears of rent, and in taking a view that it had the power to determine the arrears of rent. Accordingly, I accept that counsel for the applicant has identified a question of law with regard to the determination of the Tribunal, namely whether the Tribunal was correct in the way in which it approached the question.

27
27. In that regard I note s. 76 of the Act provides that either or both a landlord and tenant may refer a dispute for resolution. The Act envisages a number of disputes being determined in an adjudication or appeal to the Tribunal, and that one or several disputes may be referred by either landlord or tenant, or both. Section 76 is clear in this regard. What is not identified in the Act is how a disagreement is to be formulated, and whether the formulation by one or both parties, as is the case with pleadings in court litigation, is required to be formally set out by the parties before the hearing, or whether it may arise in the course of the hearing, subject of course to fair procedure being afforded to each party, and no matter of “surprise” arising.

28
28. The applicant does not argue that the question of rent arrears came as a surprise to him, and whilst he makes a number of averments in his affidavits that he was denied natural justice and that he was unaware that the issue of rent would be raised at the Tribunal, he does not say that he was denied natural justice in that the arrears of rent were raised for the first time either at the adjudication or at the hearing before the Tribunal, or that he asked for, and was not afforded, an opportunity to consider the figures. He says, rather, that rent was not an issue. I disagree, and consider that rent was a matter legally before the Tribunal and before it the adjudicator, and I say so for the following reasons.

29
29. In effect, what the applicant argues is that the person who fires the first shot or who first refers the issue to the resolution process fully delineates the matters that may be resolved in the process. This cannot be correct as a matter of law as by virtue of s. 75 of the Act any issue between the parties may be referred to the PRTB for resolution, and it cannot be the case that properly interpreted the section does not allow the respondent to an appeal to raise issues for determination.

30
30. I do not consider that the deeming proviso in s. 75(3) limits the power of the Tribunal to determine disputes with regard to arrears of rent to those disputes in respect of which the tenant has not indicated that he or she disputes the landlord’s entitlement. I consider that on a true reading of s. 75(3), any issue between the parties with regard to the compliance with the covenants and agreements in a letting agreement, or with regard to their legal relations, may be submitted for dispute resolution, and that the landlord may, in the context of this referral, make a claim for arrears of rent.

31
31. Further, I consider that the adjudicator, and ipso facto the Tribunal on appeal, was entitled to inquire into each relevant aspect of the dispute, and this included the dispute with regard to the arrears of rent, and indeed as to the quantum of those arrears which ultimately came to be a matter of little contention between the parties. This is expressly provided in s. 97(2) of the Act, which provides as follows:

“The person appointed under section 93 (3) or 94 (a) to conduct the adjudication (“the adjudicator”) shall inquire fully into each relevant aspect of the dispute concerned and provide to, and receive from, each party such information as is appropriate.”

32
32. To some extent it might be argued that s. 97(2) begs the question raised in this case as it refers to “the dispute concerned” but a regard must also be had to s. 97(3) which provides:

“For that purpose, the adjudicator may require either party to furnish to him or her, within a specified period, such documents or other information as he or she considers appropriate.”

33
33. The procedure for dispute resolution is provided in Chapter 6 of the Act of 2004. The Tribunal inter alia hears appeals under s. 100 from the determination of an adjudicator, and it was by that procedure that the Tribunal came to hear the appeal in this case. The Tribunal is required under s. 104(3) to give notice of the holding of the hearing, and to include certain information and certain notices, including an outline of the substance of the matters to be dealt with at the hearing.

34
34. The combined effect of these sub-sections is that the Tribunal on appeal has the power to characterise or formulate the dispute, to request documentation and information, and to transmit the relevant documentation and information to each party. In doing so it identifies the issues.

35
35. The documentation furnished to the parties ran to 42 pages, with a fully paginated table of contents and included the report from the adjudicator, the rent statement, the deed of appointment of the receiver and correspondence. Thus, the Tribunal itself, in its notice dated the 27 th March, 2014, furnished the relevant documentation and identified the issues, including the issue of rent arrears and the identity of the landlord.

36
36. It is evident from the documentation sent by the Tribunal to both parties in advance of the hearing in its letters of the 27 th March, 2015 that the question of arrears of rent was a live issue in the file. In particular, I note a rent statement and correspondence relating to rent were enclosed by the PRTB in correspondence sent to both landlord and tenant in accordance with the statutory requirements

37
37. One of the documents furnished by the Tribunal to the parties in advance of the hearing was the report of the adjudicator, Dairine MacFadden, in respect of the adjudication held before her on the 11 th December, 2013. From this it is clear that the landlord sought at that hearing “an order for the arrears of the rent and an order for possession”. Thus there was before the adjudicator at least two issues, the issues with regard to the validity of the notice of termination, and the issue of the arrears of rent.

38
38. The applicant appealed the quantum of the rent, on a number of grounds, namely that there had been an agreed reduction, and that the tenant was entitled to deduct certain expenditure on maintenance against the moieties of rent. The notice of appeal expressly asserted that “the Adjudicator denied me an opportunity to present contradictory evidence to establish that the rent adjudicated on as being outstanding, was overstated and took no account of the counter-claims against the landlord for breach of his obligations.” Further, the landlord put before the adjudicator in correspondence his claim for arrears of rent and the matter had thus crystallised as a claim and counter-claim.

39
39. Accordingly, I consider that the tenant himself put the issue of rent before the Tribunal, albeit not before the adjudication hearing. He thereby vested in the Tribunal on appeal an entitlement to consider the question of arrears in the appeal. In the alternative he implicitly accepted that the question was properly vested in the Tribunal. Equally, the landlord made a claim for arrears at first instance and on appeal.

40
40. Finally, and arising from first principle, I consider that the applicant is incorrect as his argument is in essence that the resolution process established by the Act, whether at first instance before the adjudicator, or on appeal before the Tribunal, requires pleadings and processes akin to those of a court. One of the purposes of the Act was to simplify the resolution of landlord and tenant disputes in the residential sector. This is clear from the long title which identifies the common good as one of the principles upon which the Act of 2004 was founded. At para, (c) of the long title the following appears:

a “(c) with the aim of allowing disputes between such parties to be resolved cheaply and speedily, for the establishment of a body to be known as an Bord um Thionóntachtai Cónaithe Priobháideacha or, in the English language, the Private Residential Tenancies Board and the conferral on it of powers and functions of a limited nature in relation to the resolution of such disputes,”

41
41. The dispute resolution mechanism established by the Act of 2004 cannot involve the denial of natural or constitutional justice or fair process, but it is undoubtedly the case that the process was intended to be cheaper, more speedy and accordingly less cumbersome and weighed down with formal procedures than those which must be adopted by litigants in the courts. Thus, the procedure for the lodging of a short-form application for submission to dispute resolution does not of itself delimit the dispute and the extent of the dispute can come to be formulated in the course of a hearing before an adjudicator, or before the Tribunal, or in the case of the Tribunal by the Tribunal’s own exercise of identifying the relevant documents and information which it considers relevant to the dispute and in respect of which the parties are given an opportunity to consider in advance of the hearing.

42
42. Further, I consider that the primary argument of the applicant, that the adjudicator and the Tribunal were constrained in their approach to the dispute by the initial dispute as framed or formulated by the applicant to be incorrect as a matter of law and as a matter of good sense. Even in the course of complex litigation in the Superior Courts, there is established jurisprudence that a party may amend pleadings, and this can be done even in the course of the trial. The requirements of justice and fairness of process can be met by an adjournment or, as the case may be, the making of case management directions or the hearing of modular issues. If such jurisprudence exists in the case of a court, then still more must be said to exist as a matter of law in a tribunal which is given a mandate to deal with disputes efficiently and speedily, and where no formal pleadings are required in the legislation or in any regulations for the initiation of dispute resolution. McGovern J. In County Louth VEC v. Equality Tribunal (Unreported, High Court, 24 th July, 2009) commented on this and made the following observation at para. 6.2:

“If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint… remains the same.”

43
43. This comment was quoted with approval, and followed by Hedigan J. in Clare County Council v. Director of Equality Investigations & Anor. [2011] IEHC 303. It seems to me to guide my consideration of the first point of appeal and together with the reasons here articulated leads me to the conclusion that the question of rent arrears was before the Tribunal.

Conclusion on the rent question
44
44. For these reasons stated I therefore consider that the question of rent, and the claim by the landlord for the payment of arrears was before the adjudicator and before the Tribunal on appeal.

The second ground of appeal: The identity of the landlord
45
45. The second ground of appeal is that the Tribunal erred in law in determining that rent was due to the receiver, as there was “no agreement at all” between the applicant and the receiver which might have constituted a tenancy agreement in respect of which arrears of rent might have arisen. The claim is somewhat unclearly formulated, and the plaintiff changed solicitor after the initial proceedings and grounding affidavit were lodged. Counsel who argued the matter before me appropriately sought to refine the claim and he did so partly in the context of the statement of opposition as filed by the respondent and by the notice party. Counsel is to be commended for this approach.

46
46. The question of whether the receiver was entitled to the rent is undoubtedly a question of law, and is a question which brings into play s. 108 of the Land and Conveyancing Law Reform Act 2009, as well as the contractual relationship between landlord and tenant. It bears noting for that purpose that the notice of termination was served by the receiver arising from an alleged arrears of rent, and that the applicant at no time, neither before the adjudicator nor the Tribunal, nor indeed before this Court, made any argument whatsoever that the rent had not fallen into arrears, that he had paid his identified landlord, who was a natural person and not a company, the rent to date, or that the amount of rent calculated to be due and owing was incorrect arithmetically.

47
47. The argument made is that the evidence before the Tribunal did not justify its decision that the receiver was entitled to collect the rent. This is a question of law, and one amenable to appeal on a point of law, and, in accordance with the decision in Mara v. Hummingbird Ltd. However, I consider that this argument is wholly without merit and that there was ample evidence before the Tribunal, and indeed ample evidence submitted by the parties in advance of the hearing, showing the deed of appointment of the receiver, and the chain of correspondence between the applicant and the receiver. The applicant never sought to challenge the title of the receiver having received sufficient evidence of his appointment. The applicant was prudent not to seek to deny the title of his landlord as this might have brought about a forfeiture as a matter of law. Mark McInerney, the person originally identified by the applicant as being his landlord, was a director of Cheval and also its secretary, and if the applicant has a tenancy, it has to be with the company, and the company being in receivership, the receiver is entitled to collect the rent.

48
48. What is noteworthy also in the finding of the Tribunal is that the applicant gained advantage from the receiver’s acceptance that he was bound by the agreement to accept a reduced monthly rent. The receiver gave evidence in the course of the hearing that he was “sufficiently persuaded” in a separate dispute process between him and the applicant that such an agreement had been reached. Thus, by November 2013, on his evidence, he accepted the lower rent, and the applicant had the advantage of an earlier dispute resolution process in which he had successfully persuaded the receiver that he was bound by the contractual agreement to reduce the rent. Thus even as early as November 2013 the applicant had engaged with the receiver, when the amount of the arrears was in issue between them and the quantum was one capable of being calculated at a figure below that initially claimed by the receiver. At that point in time the identity of the landlord had ceased to be an issue between the parties and I consider that the applicant’s attempt to bring it later into issue is without merit, and was not one seriously contended before the Tribunal at the oral hearing at which he was legally represented. I consider that the applicant, having gained the advantage of a dispute resolution mechanism with the receiver, and having persuaded him to accept the lower rent, cannot now seek to argue in this Court that he did not know, or that there was insufficient evidence before the Tribunal, that the person lawfully entitled to the rent was the receiver, and not the natural person whom he identified as landlord in correspondence.

49
49. I accept the argument of counsel for the receiver that the applicant did not raise at the adjudication hearing or at the Tribunal the question of the identity of the landlord or of his title. In that context, that matter is not before me, and may not be raised by way of a separate appeal. Furthermore, even if I am incorrect in this, it seems to me that there was adequate evidence on which the Tribunal could have made its decision, and that the applicant, if he is to take a prudent approach to the question, must accept that the rent is payable to the receiver. I also take the view, and this is a view on facts, that the correspondence between the applicant and the receiver adequately recognises the receivership and the receiver’s right to collect rent, and that the earlier dispute resolution in November 2013, and the current dispute as it played out in the correspondence regarding the question of the validity of the termination notice, contains an acknowledgement by the applicant of the role of the receiver and his right to collect rent, although I make that observation by way of comment only and the question is one of fact in respect of which I have jurisdiction to decide.

Conclusion
50
50. Accordingly, I consider that the applicant has not made out a case, and that the Tribunal did not err in determining that the receiver was entitled to receive that rent.

The third point of appeal
51
51. The third point of appeal raised is that the Tribunal did not have jurisdiction to determine the appeal as the tenancy was not registered under s. 134 of the Act. The obligation to register is imposed by the section on the landlord and the evidence is that the tenancy was registered on 18 th December, 2008, but that in the registration particulars the landlord was identified as Mr McInerney and not the company, Cheval. In the case where a landlord is a company s. 136 requires that the registered number and office of that company be identified. Section 135 requires that each new tenancy be registered.

52
52. I express no view as to whether the tenancy was a “new” or different tenancy from that registered and that question has no bearing on the matter before me for reasons that will appear below.

53
53. By virtue of s. 83 of the Act the Tribunal has no power to deal with a dispute referred to by a landlord where the relevant tenancy is not registered.

54
54. The applicant claims that as the tenancy of the company was not registered that the Tribunal had no jurisdiction to deal with the dispute, and that the determination must therefore fall insofar as it deals with any dispute referred by the landlord.

55
55. This ground of appeal must fail as it was not raised in the adjudication hearing or before the Tribunal on appeal. This Court is not hearing the appeal de novo and is confined by its statutory remit to consider only those matters of law wrongly determined by the deciding body.

Conclusion
56
56. The appeal therefore fails for the reasons stated.

Clarke v O’Sullivan

Neutral Citation: [2011] JILL-CC 020201
Docket Number: Record No. 010800/2010
Reported In: [2011] 2 JIC 0202
Jurisdiction: Ireland
Court: Supreme Court (Ireland)
Judge: JUDGE MATTHEWSJUDGE MATTHEWS
I am obliged for the submissions in relation to this Act, which is relatively new to me and in particular for Ms. Cassidy’s help and for her useful book. What I am being asked by Mrs. O’Sullivan against Mr. Clarke is a suggestion that this matter ought be referred to the Private Residential Tenancies Board. Section 124(6) of the Residential Tenancies Act,2004 provides that:

“If the applicant under this section is not the Board, the respondent shall give notice to the Board that he or she proposes to oppose the application and the Board shall be entitled to appear and be heard at the hearing of the application.”

and it is clear that the Board have a right of audience in an application of this nature. Mrs. O’Sullivan principally relies upon the provisions of s.182 of the Residential Tenancies Act,2004, which provides that:

2 “(1) On and from the commencement of Part 6, proceedings may not be instituted in any court in respect of a dispute that may be referred to the Board for resolution under that Part unless one or more of the following reliefs is being claimed in the proceedings-

(a) damages of an amount of more than €20,000,

(b) recovery of arrears of rent or other charges, or both, due under a tenancy of an amount, or an aggregate amount, of more than €60,000 …”

To put dispute in context, I look to section 76(1) of the Act of 2004, which provides that:

“Either or both of the parties to an existing or terminated tenancy of a dwelling may, individually or jointly, as appropriate, refer to the Board for resolution any matter relating to the tenancy in respect of which there is a dispute between them.”

Section 124 is also important as it deals with enforcement of a determination order by the Board and s.124(1) provides that:

“If the Board or a party mentioned in a determination order is satisfied that another party has failed to comply with one or more terms of that order, the Board or the first-mentioned party may make an application under this section to the Circuit Court for an order under subsection (2).”

I have to deal with that in the context of s.78(1)(n) upon which Mr. Collins relies and it provides that:

“Without prejudice to the generality of sections 76 and 77, the matters in respect of which disputes and, where appropriate, complaints may be referred to the Board for resolution include:”

…
(n) an alleged failure by a person to comply with a determination order made by the Board”

There has been an alleged failure in this case in that it is said that Donnacha O’Sullivan has not complied with the determination order of the Board. Section 91 is also important in this context in that it provides that:

2 “(1) To the extent that an alternative remedy is available in respect of any dispute falling within this Part and a person takes any steps to avail himself or herself of that remedy, that person may not refer the dispute to the Board for resolution.

(2) If a person, other than the person mentioned in subsection (1), refers a dispute to the Board for resolution, being a dispute-

(a) to which that other person is a party, and

(b) as respects which that other person takes or has taken steps of the kind mentioned in that subsection,

then the Board, a mediator, an adjudicator or the Tribunal may, in dealing with the dispute, take account (with regard to the relief that may be granted and to such extent as it or he or she considers just) of the existence of that alternative remedy”

Originally, this case was brought by Mr. Clarke and the parties then provided for the referral of the dispute to a tribunal. It appears that there was a settlement of the dispute and the settlement became part of a determination order. There is a dispute between the parties as to whether Mrs. O’Sullivan has been in compliance with the determination order of the tribunal. Mr. Clarke asserts that there has been a failure comply with clause 4(1) of the determination order and I refer to paragraph 11 of Mr. Clarke’s affidavit. In section 124 of the Act, the question is as to whether there is non-compliance with a determination order of the tribunal. This may be referred to the Circuit Court. Section 124 expressly confers jurisdiction on the Court and the issues whether a party such as Mrs. O’Sullivan has complied with the determination order. The Court has seisin of the matter. Section 124 goes on to provide after subsection (1) that:

2 “(2) On such an application and subject to section 125, the Circuit Court shall make an order directing the party concerned (the “respondent”) to comply with the term or terms concerned if it is satisfied that the respondent has failed to comply with that term or those terms, unless –

(a) it considers there are substantial reasons (related to one or more of the matters mentioned in subsection (3)) for not making an order under this subsection, or

(b) the respondent shows to the satisfaction of the court that one of the matters specified in subsection (3) applies in relation to the determination order.

(3) The matters mentioned in subsection (2) are-

(a) a requirement of procedural fairness was not complied with in the relevant proceedings under this Part,

(b) a material consideration was not taken account of in those proceedings or account was taken in those proceedings of a consideration that was not material,

(c) a manifestly erroneous decision in relation to a legal issue was made in those proceedings,

(d) the determination made by the adjudicator or the Tribunal, as the case may be, on the evidence before the adjudicator or Tribunal, was manifestly erroneous.”

There are very limited rights granted by the provisions of s.182 of the Act. The issue here is whether the party has complied with the determination order. That is, in my judgment, something that the Circuit Court may determine. I will allow this application to be made by Mr. Clarke and, although I am impressed by the cogency of the arguments made by Mr. Collins, in my view, when one looks at sections 182 and 124 together, I believe the Circuit Court can deal with these issues.