Tenancies Regulation

Cases

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1214-000989 / Case Ref No: 0314-10815

AIB v Fitzpatrick

Appellant Landlord: Allied Irish Banks Plc
Respondent Tenant: Judith Fitzpatrick
Address of Rented Dwelling: Bayview, Blackglen Road, Balally, Sandyford ,
Dublin 18.
Tribunal: Tim Ryan (Chairperson)
John FitzGerald, Vincent P. Martin
Venue: Tribunal Room, PRTB, O’Connell Bridge House,
D’Olier Street, Dublin 2
Date & time of Hearing: 10 February 2015 at 2:30
Attendees: Sally McKenna, Joynt & Crawford Solicitors,
Representative of the Appellant Landlord.
Sinéad Harrington, Joynt & Crawford Solicitors,
Representative of the Appellant Landlord.
Nevan Powell BL, Counsel for the Appellant
Landlord.
Judith Fitzpatrick, Respondent Tenant
Aine Curran, O’Meara, Geraghty McCourt Solicitors,
Representative of the Respondent Tenant.
M.P. Guinness BL, Counsel for the Respondent
Tenant.
In Attendance: Gwen Malone Stenographers
1. Background:
On 06/03/2014 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 24/07/2014 and 17/09/2014. The Adjudicator
determined that:
The PRTB has no jurisdiction in respect of the Applicant Tenant’s application, in respect
of the alleged tenancy of the dwelling at Bayview, Blackglen Road, Balally, Sandyford, in
the County of Dublin.
Subsequently an appeal was received from the Landlord on 30/12/2014. The grounds of
the appeal were overholding, invalid Notice of Termination and Other. The appeal was
approved by the Board on 09/01/2015.
The PRTB constituted a Tenancy Tribunal and appointed Tim Ryan, John FitzGerald and
Vincent P. Martin as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Tim Ryan 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 10/02/2015 the Tribunal convened a hearing at Tribunal Room, PRTB, 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:
N/A
4. Procedure:
The Chairperson asked the Parties to identify themselves and to identify in what capacity
they were attending the Tribunal. He 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 conducted in a manner as informal as possible;
that the Appellant Landlord would be invited to present its case first, that there would be
an opportunity for cross-examination by the Respondent Tenant; that the Respondent
Tenant would then be invited to present her case and that there would be an opportunity
for cross-examination by the Appellant Landlord.
He also 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.
He 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 and/or up to 6 months imprisonment or both.
The Chairperson noted that should the parties indicate that they would be able to resolve
the dispute through negotiation, the Tribunal would facilitate any such settlement. The
terms of any such agreement can be incorporated into a Determination Order of the
Tribunal and thus become enforceable through the Courts.
The Chairperson also reminded the Parties that as a result of the Hearing the Board,
would make a Determination Order which would be issued to the parties and posted on
the PRTB website. The Determination Order could be appealed to the High Court on a
point of law only under Section 123(3) of the Residential Tenancies Act, hereafter
referred to as the Act of 2004.
The Parties giving evidence were then sworn in and the hearing commenced.
5. Submissions of the Parties:
Appellant Landlord’s case
Submissions by Nevan Powell BL:
Counsel for the Appellant Landlord said he would be relying on the documentation as
already presented and would not be going into evidence.
Opening his case Counsel for the Appellant Landlord said it was not in dispute that the
Respondent Tenant was in occupation in the Dwelling all her life. He said her parents had
lived there since around 1945. He said they had held it under some form of tenancy and it
was not disputed that an annual rent was paid and in recent years that rent was €106.11
per annum. He said there were two payments of that sum made to the Appellant Landlord
since the Dwelling was demised to the Appellant Landlord by Deed of Surrender of 1 April
2009. He said the Appellant Landlord had been described at the adjudication hearing as a
“reluctant landlord” in the sense that it had advanced monies to the previous owner to
purchase the property on 22 July 2004.
Counsel for the Appellant Landlord said the Appellant Landlord now wished to sell the
property and issued a Notice of Termination for this purpose, believing at that material
time that the tenancy agreement was a Further Part 4 tenancy. He said that in the
application for an adjudication the reason set out were an invalid Notice of Termination
and an illegal eviction. However, he said neither of these issues were addressed by the
Respondent Tenant.
Counsel for the Appellant Landlord said it appeared that the Respondent Tenant had
given notice to seek relief under the 1980 Landlord and Tenant Amendment Act but that
provision has been repealed and was not contested. In any event, he said the
Respondent Tenant could not file for such relief as she was out of time.
Counsel for the Appellant Landlord said Counsel for the Respondent Tenant had then
submitted that the Tenant was the beneficiary of a 99-year lease. He said she had been
told by her father in or around the 1970s that back in the 1940s he had entered into this
lease, that this lease was sent to England for signing on behalf of the landlord but was
never returned. Therefore, he submitted that this lease was never executed or concluded.
Even if it was executed, Counsel submitted it was in manifest conflict with the
Respondent Tenant’s conduct in seeking relief under the 1980 Act.
He submitted that the fact the Respondent Tenant’s final claim that she had an equitable
right to remain for life in the Dwelling pointed to the fact that she had no idea what the
nature of her interest was, or is, in the property. One by one, he said the applications
failed either by want of reliefs being no longer applicable, or by virtue of the relevant
provisions being repealed, or due to her inability to provide evidence of the lease.
Ultimately, he said the matter settled on a special condition in a contract of 2004 between
the previous owners, Caspian Developments Ltd. and its predecessor in title, Deirdre
Jennings. Special condition 6 states:
“The dwelling was sold subject to the rights of the existing tenant, Ms Judith Fitzpatrick, to
reside in the property for the rest of her life or such other rights as she may have as a
tenant under the rent controlled legislation, namely, the Housing (Private Rental
Dwellings) Act 1982 and 1983 and any amendments to same. No objection or requisition
shall be raised regarding any letting agreement with the existing tenant and no evidence
shall be furnished regarding the rights of the existing tenant to occupy the said premises.”
Counsel for the Appellant Landlord said there was a further written legal submission
made that by its conduct the Respondent Landlord was stopped from relying on an legal
rights because the Respondent Tenant had acted to her detriment in failing to take
advantage of a right that would otherwise have been open to her to apply under the 1980
Act before the relevant provision was appealed. He submitted that no evidence of any
such a representation was made at the adjudication hearing.
Counsel for the Appellant Landlord said two findings of fact were made by the
Adjudicator, firstly, that the Respondent Tenant holds an equitable right of residence in
the Dwelling as evidenced by Special Condition 6 and secondly, that this right existed
before the previous landlord became a mortgagee in the respect of the Dwelling on 16
August 2004 and before the said previous landlord surrendered the Dwelling on 1 April
2009.
Counsel submitted that a finding of the Adjudicator is in manifest conflict with the
evidence put before the adjudication hearing that there was at no time any evidence that
the Respondent Tenant was ever conferred with an equitable right of residence, much
less that she was aware of the conferring of any such right, much less that she acted to
her detriment in relying upon that right. By contrast, he submitted there is evidence that
the Respondent Tenant at all times was aware of the nature that she was a tenant in the
property and was paying rent. He said the adjudicator’s finding are silent on whether, on
the precise nature of the equitable right, if the Respondent Tenant is liable to pay rent or if
the Appellant Landlord is liable to repay the rent that has been paid in error. He submitted
that the wording of Special Condition 6 was of critical assistance for the Tribunal in
determining if it conferred any right whatsoever on the Respondent Tenant.
Counsel further submitted that it was clear that the vendor to the previous landlord was
not aware of the precise nature of the Respondent Tenant’s interest in the property and
that it was left to the purchaser to purchase it, subject to any pre-existing rights.
Counsel further submitted that there is no logical construction of special clause 6 which
can be seen to confer a right on the Respondent Tenant. He said the Appellant Landlord
was at a loss to know precisely what the Adjudication had determined. “Is the
Respondent Tenant’s right in the property other than it says she has an equitable right of
residence in the property?” he asked. He submitted that the Adjudicator had erred in her
finding that Special Condition 6 conferred an equitable right of residency in the property.
Counsel further submitted that the Adjudicator erred in finding that the equitable right of
residence, if it is existed, survived the transfer of title in the property to the Respondent
Tenant. He submitted that the Adjudicator erred in finding that the Respondent Tenant’s
interest was superior to that of the Appellant Landlord’s right to vacant possession and
that the Adjudicator failed to adequately identify the nature of the Applicant Respondent’s
interest in the property. He submitted the Adjudicator was wrong in law in finding that the
PRTB has no jurisdiction in the matter.
Counsel further submitted that it was the Respondent Tenant who had requested the
Appellant Landlord to register as a landlord. He said the Respondent Tenant had
challenged the validity of the Notice of Termination which was served personally and
complies with all the conditions of Section 62 of the Act of 2004. He said the Respondent
Tenant’s occupation of the Dwelling satisfies the criteria of a Part 4 tenancy within the
meaning of the Act of 2004 and may only be terminated in accordance with Section 34,
namely that the Appellant Landlord intends to sell the Dwelling within three months of the
termination of the tenancy. He said the sale had been stayed by agreement pending the
outcome of the Tribunal hearing.
Counsel further submitted that subsection 1 of the Act of 2004 states that it does not
apply to a dwelling which is the subject of an application made under Section 21 of the
1980 Act. He said he believed that no such application had ever been made under this
section. He said no alternative legal remedy had ever been sought other than through the
PRTB.
Counsel further submitted that at the initial hearing an application was made that the
Respondent Tenant might have been entitled to purchase a fee simple under the Ground
Rents Act but that this was quickly withdrawn and was never further pursued.
Counsel further submitted that the original hearing was adjourned to allow evidence of the
99-year old lease to be furnished but no evidence was ever produced. He said it was
further adjourned to allow the Respondent Tenant make further legal submissions and
they were contained at page 106 of the case file. In these submissions it was claimed that
the Respondent Tenant’s parents commenced occupation of the Dwelling around 1941 at
a rent of IR£43 being €54.60 per quarter. He said that this did not accord with the actual
rent paid but it appears in the Requisitions on Title. He said that neither of the previous
two landlords were aware of the precise nature of it because it was not the rent agreed as
the rent paid was the sum of €106.11 per annum. He submitted that at the Adjudication
hearing, in support of her claim the Respondent Tenant adduced supporting documentary
evidence in the form a solicitor’s letter which relied on what he submitted was hearsay
opinion from a previous landlord, Deirdre Jennings. He said this was not proper
admissible evidence placed before this Tribunal hearing and therefore its value, if any,
was minimal.
Counsel further submitted that the Respondent Tenant had referred to a case law
National Bank v. Keegan (decision 1931IR344). He said this was a wholly distinguishable
case as what was at issue was whether:
“the validity of an argument in writing where the Defendant purported to grant his aunt,
during her life, the exclusive use of a drawing room and bedroom over same, with fuel
and suitable support and maintenance in the dwelling house free of charge, the
consideration being natural love and affection.”
He said the issue being considered in this case was whether the consideration of natural
love and affection were sufficient. In the case at issue, however, he said the Respondent
Tenant relied on no memorandum or agreement evidenced by any means whatsoever.
Instead, he said she had asked the Tribunal to assume that Deirdre Jennings granted her
a right of residence as Deirdre Jennings’s predecessor in title, or that she had a right of
residence in the property or that she had rights of tenancy, the details of which she had
failed to give.
Counsel further submitted that the only evidence before the Tribunal is that the
Respondent Tenant was born into the Dwelling where her parents were tenants before
her, that they predeceased her and that she has lived there all her life. He submitted that
it was a “terrible position really” and it was not something in which the Appellant Landlord
took any pleasure but she was living in a Dwelling that will be in need of repairs.
Counsel further submitted that the outcome of the Adjudication left the Parties in a limbo
as to what the precise nature of the Applicant’s interest in the property because it simply
said she has an unspecified equitable life interest in the Dwelling.
Counsel further submitted that, in relation to the Requisitions on Title, essentially what
they showed was that the Parties were aware that there was a relationship of landlord
and tenant as between Ms Jennings and the Respondent Tenant but it appeared that
neither of the Parties were minded to enquire as to what the precise nature of that
relationship was and he submitted that Special Condition 6 was effectively an
acknowledgement of that.
Counsel further submitted that the property was being purchased by the previous landlord
with the intention of a development on the adjoining site to the Dwelling. He said it
appeared that “in the excitement of the Celtic Tiger era” not sufficient attention was paid
to the detail and to enquire as to what the Respondent Tenant’s interest was.
Counsel further submitted that in the circumstances where the only evidence before it
was that annual rent of €106.11 was paid, there did not appear to be any other
substantive agreement on the tenancy. In that context, he submitted that it was a regular
Part 4 tenancy and that the Tribunal should decide whether the Notice of Termination was
valid and whether the Appellant Tenant was entitled to possession of the Dwelling.
Counsel for the Appellant Landlord accepted that the Respondent Tenant became the
tenant herself in 1996 on the death of her mother, her father having died in 1979. He
agreed that the Respondent Tenant may have rights but it was not clear how those rights
arose. He said it was up to the Respondent Tenant to first establish how and when those
rights arose. In fact, he said the evidence submitted by the Respondent Tenant was in
manifest conflict with the existence of such rights. In fact, he said the “onus is quite high”
on the Respondent Tenant to establish an equitable interest.
Questioned further by the Tribunal, Counsel for the Appellant Landlord said it was his
understanding that it was the intention of the previous landlord that on completion of the
development, the property would be levelled and that alternative accommodation would
be sourced for the Respondent Tenant. He also confirmed that the Appellant Landlord did
not ever envisage being a full-time landlord. Rather he said it would be seeking to divest
itself of the property at the earliest opportunity.
Questioned further by the Tribunal with regard to Section 110(b) of the Act of 2004 which
states it does not cover a tenancy of more than 35 years duration, Counsel for the
Appellant Landlord said there was no evidence as to the term of the tenancy and he
would submit it was a year-to-year tenancy covered by the provisions of the Act.
In his final summary, Counsel for the Appellant Landlord said he would appreciate if the
Tribunal could, when making its determination, give a reasoned basis as to why it does
not have jurisdiction, if such was its decision.
The Respondent Tenant’s case:
Submissions byM.P Guinness BL:
Opening her submissions, Counsel for the Respondent Tenant said that as the hearing
was a de novo one, arguments and the chronology of what had happened at a previous
hearing should not influence it and any arguments made by her previously should not be
taken to be in manifest conflict with any arguments she would now make to this hearing.
Counsel for the Respondent Tenant said she was making no apologies to the Tribunal for
having pursued every legal argument in order to avoid a position whereby the Appellant
Landlord was attempting to evict the Respondent Tenant from the house in which she
was born. She said it would not constrain her from making any further and/or additional
legal arguments to this Tribunal hearing.
Counsel for the Respondent Tenant said that firstly, the wording of Special Condition 6
was key to the case and made it very clear that the Respondent Tenant had a right to
reside in the Dwelling for the rest of her life.
Counsel for the Respondent Tenant said a previous landlord, Deirdre Jennings, had
inserted this clause. She and the Respondent Tenant grew up together, were friends and
had played in the fields together. She said Deirdre Jennings had told the Respondent
Tenant that she would never be put out of the Dwelling. She said that, having sold the
property, she had come back and said to her: “I told you I would never put you out of the
property”.
Counsel for the Respondent Tenant further submitted that in addition, the previous
landlord, Maurice Dunne of Caspian Developments, had come to the Respondent Tenant
and introduced himself and had told her: “You will never be out of the house”.
Counsel for the Respondent Tenant further submitted that neither Deirdre Jennings nor
the Respondent Tenant were lawyers but the one thing that was clear was that Deirdre
Jennings was going to make sure that the Respondent Tenant was not going to be put
out of that property for life. She said Special Condition 6 made it very clear the
Respondent Tenant had a right to live in the Dwelling for the rest of her life and any other
rights she might have were ancillary but she had that one basic right.
Counsel for the Respondent Tenant further submitted that it was clear that the solicitors
for the previous landlord were on notice from Eugene F. Collins, Solicitors for the vendor
Deirdre Jennings that the Respondent Tenant was “bone fide residing in the premises”
and has continued to do so since that time. In a letter the solicitor made reference to the
Rent Restrictions Acts (1960/1967) but he clearly did not know what her legal
entitlements were either other than she was bone fide residing there.
Counsel for the Respondent Tenant further submitted that the nub of the question was
whether the Appellant Landlord could enhance what they own by getting greater interest
in a property than what the previous landlord had.
Counsel for the Respondent Tenant further submitted that Respondent Tenant would give
evidence saying that it is her understanding there may be an old written lease agreement
in London but it could not be tracked down. She said the Respondent Tenant had a clear
recollection of her father saying that there was a signed lease. She said this was
supported not only by Deirdre Jennings but by the previous landlord, by Special Condition
6, by a letter from the solicitor for a former landlord to the previous landlord and by the
Letter of Surrender from the previous landlord, all of which copper-fastened that the
Respondent Tenant does have an equitable right in the Dwelling.
Counsel for the Respondent Tenant further submitted that it was not a matter for the
Tribunal to decide what exactly that right is and she quoted from Wylie’s Irish Land Law
book where it states:
“This particular area of law is far from clear despite modern legislation in both parts of
Ireland. The main reason is that these rights can take several forms and this has hindered
the judges in deciding exactly what sort of interest in land is created.” (Irish Land Law,
Wylie, Professor J. 5th edition, p988).
Counsel for the Respondent Tenant further submitted that the Tribunal had first to be
satisfied that it had jurisdiction to deal with the matter and, if it did not come within the
statutory remit of the PRTB, that ended the matter and it would then be up to the
Appellant Landlord to take whatever further legal action, if any, it felt appropriate or
necessary. She said that if the Tribunal decided it did not have jurisdiction it should not go
to the next step to determine exactly what interest, it merely had to decide whether or not
it had jurisdiction.
She said that if there is a difficulty with the contract, then that was a matter between the
Appellant Landlord and the solicitor at the time but the latter was not denying that it was
on full notice of rights that the Respondent Tenant had. She submitted that the onus was
not on the Respondent Tenant but rather on the Appellant Landlord to prove that
something took precedence over Special Condition 6. Failure to do so, coupled with the
evidence of the Respondent Tenant, should be enough to persuade the Tribunal, on the
balance of probabilities, that it did not have jurisdiction in the case and that there is an
equitable right of interest in the Dwelling.
Questioned by the Tribunal, Counsel for the Respondent Tenant also submitted that the
term of the tenancy, which was lifelong, was in excess of 35 years and therefore was
outside of the Act as cited in Section 100(b) of the Act of 2004.
Submissions on admissibility of evidence, including admissibility of certain
documentation:
At the Hearing of 10 February 2015, the Tribunal adjourned to consider two submissions
on admissibility from Counsel. Counsel for the Appellant Landlord formally objected to the
admission of the letter from the solicitors for Deirdre Jennings, Eugene F. Collins, unless
the author was present to be cross-examined on it. Counsel also objected to evidence
that might be given as to what Deirdre Jennings and Maurice Dunne had said to the
Respondent Tenant, given that they had not been called as witnesses. Counsel further
questioned why new evidence might be given at the Tribunal, the Respondent Tenant
should state why this was not given at the initial hearings.
In response in regard to the letter, Counsel for the Respondent Tenant said Counsel for
the Appellant Landlord had not objected to it at a previous adjudication hearing and had
she known he was going to now object, she would have produced its author in court. In
regard to new evidence she said she could produce any new evidence she wished as it
was a de novo hearing. Having adjourned for a short period, the Tribunal Chairman said
the Tribunal would deal with the matter in its report.
Evidence of Judith Fitzpatrick, Respondent Tenant:
In her evidence, the Respondent Tenant confirmed she was born in 1948. She said her
father had told her he had signed a lease in 1944 before she was born. She said it was
sent to England to be signed by Mrs Margaret McNally who was the mother of Deirdre
Jennings. She said she was a very good friend of Deirdre Jennings who sometimes
stayed over in the Dwelling. She said they had been friends for over 60 years but she had
lost contact with her in recent times. She said she believed Ms Jennings now lived in
Wexford.
She said that with her permission, they had built on a new kitchen and put in new
windows, rewired the Dwelling, put up new gutters, plastered chimneys, put slates on the
roof and put in a new door. She said they also put in a septic tanks and Deirdre Jennings
had paid for a JCB to do the digging.
The Respondent Tenant said Deirdre Jennings had told her she would never “put her
out”. The Respondent Tenant said Deirdre Jennings sold the Dwelling to Caspian
Developments, the previous landlord. She said the new landlord had come to her one
evening and told her he owned the land at the back of the Dwelling. She said he was a
very nice and polite man. She said he had said he would always call for the rent
personally and when she asked him what would happen if he ever sold it, he had replied:
“Nothing, you would go on the same as you were with me”.
Counsel for the Appellant Landlord said he would not cross-examine the Respondent
Tenant but objected to her evidence on the grounds that it was wholly hearsay and the
people mentioned were not present.
Questioned by the Tribunal, the Respondent Tenant said originally the rent was IR£84
per annum. She said it never went up and the £84 equated to €116.10.
6. Matters Agreed Between the Parties
1. The Respondent Tenant has been in occupation of the dwelling all her life and since
before ownership demised to the Appellant Landlord.
2. The rent is €106.11 per annum.
3. A Notice of Termination was served on the Respondent Tenant on 4 December 2013
with a termination date of 4 April 2014.
4. The Respondent Tenant is still in occupation.
7. Findings and Reasons:
Admission of evidence, including admission of certain documentation.
At the Hearing of 10 February 2015, Counsel for the Appellant Landlord formally objected
to the admission of the letter from the solicitors for Deirdre Jennings, Eugene F. Collins,
unless the author was present to be cross-examined on it. Counsel also objected to
evidence that might be given as to what Deirdre Jennings and Maurice Dunne had said to
the Respondent Tenant given that they had not been called as witnesses. Counsel further
questioned why new evidence might be given at the Tribunal, the Respondent Tenant
should state why this was not given at the initial hearings.
Having considered the matters the Tribunal ruled that, in relation to the letter, it was
admissible as Counsel for the Appellant Landlord had not objected to it at a previous
hearing. There has been no element of surprise as the Appellant Landlord was on notice
that the said letter formed part of the many documents submitted by the Respondent
Tenant. In its quasi statutory role, the Tribunal can admit such documents provided the
Tribunal attaches the appropriate value, if any, to them and that the documentation is not
prejudicial to either side. Secondly, even if the author were to attend the Tribunal, it was
unlikely he could cast much further light on the matter than was already contained in the
letter. However the Tribunal would weigh up its evidential value by taking into
consideration the fact that the author was not present. Moreover, the Tribunal chairperson
in his opening remarks at the commencement of the hearing did remind both Parties that
whilst Tribunal appeal hearings are a formal procedure, it would be conducted in a
manner as informal as possible. Moreover and in any event, its admission by the Tribunal
made no material persuasive difference in its deliberations as it was Special Condition 6
of the contract (see below as Reason given for Finding 1) which was what the Tribunal
primarily based its findings on.
In relation to the admission of new evidence, the Tribunal decided that as the hearing de
novo, it is open to either side to introduce whatever evidence it saw fit. However, it would
entirely be a matter for the Tribunal to decide what weight to give to such evidence and to
any hearsay evidence presented to it.
Finding:
The Respondent Tenant has an equitable life interest in the Dwelling.
Reasons:
The main issue for the Tribunal was to decide if the tenancy at issue came within the
jurisdiction of the Act of 2004. If it does not, it has no other function in determining what
other steps, if any, should be taken by either party.
The Respondent Tenant has lived all her life in the Dwelling which her parents had lived
since the 1940s. The Respondent Tenant became the sole tenant following the death of
her mother in 1996.
The Dwelling was sold to the Appellant Landlord’s predecessor, Caspian Developments
Ltd., by contract dated 22 July, 2004. Special Condition 6 of the contract states:
“Lot 1 is sold subject to the rights of the existing tenant, Ms Judith Fitzpatrick, to reside in
the property for the rest of her life or such other rights as she may have as a tenant under
the rent controlled legislation, namely, the Housing (Private Rental Dwellings) Act 1982
and 1983 and any amendments to same. No objection or requisition shall be raised
regarding any letting agreement with the existing tenant and no evidence shall be
furnished regarding the rights of the existing tenant to occupy the said premises.”
It appears from the above special condition that the previous landlord, Caspian
Developments Ltd., purchased the leasehold property subject to the existing tenant ‘to
reside in the property for the rest of her life’. It was also purchased in the full knowledge
that no further evidence would be furnished as to the rights of the Respondent Tenant to
occupy the property.
In regard to whatever rights the Respondent Tenant may have enjoyed under previous
rent controlled legislation, it is acknowledged that the parents of the Respondent Tenant
may have entered into a lease which was subject to the Rent Restriction Act 1960 to
1967. However, by not serving an intention to claim relief in accordance with Section 20
of the 1980 Act prior to 1 September 2009, it appears that the assurances given by a
former landlord, Deirdre Jennings, and accepted by the previous landlord Caspian
Developments Ltd., were given with the intention that they could be fully relied upon by
the Respondent Tenant.
Therefore, the Appellant Landlord was aware of these rights when it became a mortgagee
of the dwelling on 16 August 2004 as they were expressly set out in Special Condition 6
of the Contract of Sale. The right of the Respondent Tenant to reside in the Dwelling for
the rest of her life was in existence prior to the Appellant Landlord obtaining an interest in
the Dwelling on 16 August 2004 and prior to the previous landlord surrendering title on 1
April 2009. Thus, the Appellant Landlord took its security in the Dwelling subject to the
Respondent Tenant’s interest and cannot now acquire an interest in the property which is
greater than that acquired by the previous landlord. The Tribunal finds Judith Fitzpatrick
to be a very credible witness.
8. Determination:
Tribunal Reference TR1214-000989
In the matter of Allied Irish Banks Plc (Landlord) and Judith Fitzpatrick (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Landlord is seeking an Order for Possession of the Dwelling at Bayview,
Blackglen Road, Balally, Sandyford, Co. Dublin.
On the undisputed evidence as to Respondent Tenant’s life interest in the premises
pursuant to Special Condition 6 of the contract, the PRTB has no jurisdiction to direct
the Respondent Tenant to vacate the property and, in the circumstances, makes no
Order.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 17/03/2015.
Signed:
TimRyan Chairperson
For and on behalf of the Tribunal.

 

O’Ddowda v Cahill

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001678 / Case Ref No: 0116-23779
Appellant Tenant: Sinead Cahill, Shauna Fleming
Respondent Landlord: James O’Dowda
Address of Rented Dwelling: 39 Rice Park , Waterford, X91T2CT
Tribunal: Roderick Maguire (Chairperson)
James Egan, Suzy Quirke
Venue: G.02, Department of the Environment, Newtown
Road, Wexford
Date & time of Hearing: 04 May 2016 at 11:00
Attendees: Sinead Cahill (Appellant Tenant)
Shauna Fleming (Appellant Tenant)
Niamh O’Brien (Witness)
James O’Dowda (Respondent Landlord)Wordwave
recording technicians
In Attendance: Wordwave recording technicians
1. Background:
On 26 January 2016 the Landlord 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 15 February 2016. The Adjudicator determined that:
The Respondent Tenants shall each pay the sum of €650 to the Applicant Landlord,
within 14 days of the date of issue of the Order, being damages of €325 each for
breach of obligations in failing to pay rent when it fell due and €300 for causing
damage beyond normal wear and tear and €25 in rent arrears for the month of
December in respect of the tenancy of the dwelling at 39 Rice Park, Waterford.
Subsequently the following appeal was received from the Tenant. The ground of the
appeal is Other. The appeal was approved on 1 April 2016.
The RTB constituted a Tenancy Tribunal and appointed Suzy Quirke, Roderick Maguire,
James Egan as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Roderick Maguire to be the chairperson of the Tribunal (“the Chairperson”).
On 07 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 04 May 2016 the Tribunal convened a hearing at G.02, Department of the
Environment, Newtown Road, Wexford.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
1 Copy of “Residential Tenancy Agreement” entered into by the parties.
2 Quotation submitted by the Respondent Landlord to supply and fit two mahogany doors
and handle hinge and lock sets, dated 5 April 2016.
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 people who appealed (the Appellants) 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 his case, and that there would be an
opportunity for cross-examination by the Appellants.
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.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenants stated that they had agreed to move into the house at the
beginning of September. They had initially signed the agreement with Rebecca
Comerford and Roisin Furey, but soon Roisin Furey moved out and another tenant
moved in in October, and a further person moved in in November, bringing the total
number living in the house to 5. The room was advertised on daft.ie and was let through a
letting agency, Brophy Cusack.
The Appellants did not meet or vet the new person who moved in in November, though
their agreement with the Landlord said that they must be informed if people were going to
move into the house. They were not informed. There were several viewings of the
property without their consent.
By the end of November, they felt unsafe in the house, as there was regular late
entertaining in the house by the new person living there. He would regularly bring
unknown people to the house in groups and the two Appellants did not feel safe. They
were deprived of sleep and woken up. There was a particular night where they were
woken up and there was a cloud of smoke in the house, and when they went downstairs
there was 7 or 8 people they did not know there and they were stopped from going into
the kitchen. There was a number of similar incidents.
They went to Mr. O’Dowda’s house by arrangement on 29 November 2015 and
complained. He said he would talk to the new person living in the house. He reverted to
them within a few days saying that the tenant who had moved in in November ‘seemed
like a decent lad’ and that Mr. O’Dowda could not simply throw him out, and that he was
going to pay his rent (which was overdue) soon.
They made no further complaints. They were both late paying their own rent in
December. The rent was due on the 7th. They were not in Waterford at that time as both
were preparing for exams and portfolio submissions and there was a funeral that one was
attending. One had no working phone, but had informed Mr. O’Dowda that she was going
to pay the rent late as money need to be transferred from another bank by her mother
and it took time to clear. She had told the landlord this by text on 7 December.
They got a call on the evening of 16 December from another housemate that the locks on
their rooms in the house had been changed. They were on the way back from Co. Clare
where they both lived on 17 December when they spoke to the agent Brophy Cusack and
advised to come to some agreement with the Landlord. They responded by saying that
changing locks was not the way to deal with the matter and they should have got notice in
writing of taking action in respect of arrears of rent.
The same evening they rang Mr. O’Dowda to come to some agreement by the spoke in a
threatening manner and stated that they had to pay for the locks and petrol as well as the
rent if he was going to let them back in. They stayed with friends that night and the next
day broke in the doors as they needed their portfolios to submit on 18 December, and
some material was in the rooms. They had gone to the Gardai who said it was a civil
matter. They had phoned Brophy Cusack twice who said it had nothing to do with them.
They never paid the rent for December.
They had never said that they were moving out of the property, and had only mooted the
position with Mr. O’Dowda that they might move out in January when he had stated that
he could not get rid of the new person living in the house, and he had indicated that they
could move if they got someone in January to replace themselves.
Respondent Landlord’s Case:
Mr. O’Dowda stated that it was clear that they were not going to pay the rent for
December and were just going to leave and he would have to use the deposit to cover the
rent. He believed that he had caught them out in relation to this.
He stated that he had moved in 4 people as normal in September, but one only lasted a
month. It was advertised as a five-bedroom house so anyone who took a room would
know that a fifth would move in. He listened to complaints at the end of November but
when he said that he would arrange for the Appellants to sit down with the new
housemate with him present and discuss the issues they had, the Appellants refused. He
stated that if the Appellants were not going to “stand up and be counted” he was in a
position where he could not tell the new housemate to leave.
When he met the new housemate, he looked like a fit guy, and when Mr. O’Dowda asked
if he was taking drugs in the house and warned him against it, the new housemate denied
it completely and ‘offered a DNA sample’. Mr. O’Dowda considered that to be the end of
the matter and told the Appellants that he could not evict the new housemate unless they
were going to ‘stand up and be counted.’ Nobody came back about behaviour after that.
When he collected the rent from the three men who were living in the house as usual on 7
December, there was no sign of the Appellants. It got to 15 December and he called one
of the Appellants, Shauna Fleming, to say that he needed the rent and he got no reply.
He texted on 16 December saying that ‘you need to phone me today to sort this out’ but
he got no reply. He changed the locks on their rooms on 16 December. The new
housemate who had moved in in November called on 18 December to say that the two
doors of the rooms had been broken in. Garda Brendan Quinn called to the dwelling. Mr.
O’Dowda changed the locks on Monday 21 December.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The amount paid by each Appellant Tenant was EUR 325 per month.
2. A deposit of EUR 300 each was paid.
3. The agreement between the parties commenced on 2 September 2015 and the
Appellants were locked out of their rooms on 16 December 2015.
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 Tribunal finds that there is no tenancy under the Residential Tenancies
Act 2004 and therefore the Tribunal does not have jurisdiction.
Reasons:
1. Although the parties both understood that there was a tenancy agreement between
them and that the matter was covered by the Residential Tenancies Act, in fact it is clear
from the agreement signed by the parties and the way that agreement operated that the
Appellants were licensees of particular rooms in the property at 39 Rice Park Waterford.
The “rent” that was paid was paid on an individual basis and not collectively for the
property. The Appellants had no control over the number or identity of the other parties in
the house, which was controlled at the discretion of the Respondent, Mr. O’Dowda. When
Mr. O’Dowda terminated the agreement by changing the locks, he considered that he had
an individual agreement with each of the persons in the house and changed the locks
only on their own bedrooms. The bedrooms were not self-contained residential units but
shared common areas for cooking, shared bathrooms and shared living space. All of
these facts indicate that the parties considered that there was a series of individual
agreements with each person living in the house that entitled them to their own bedroom
but that they would have communal space and as such they did not have an agreement
for a dwelling as defined in section 4 of the residential Tenancies Act 2004, not being “a
self-contained residential unit.” Therefore the 2004 Act is not applicable as Section 3
states that it only applies to dwellings, and the property the subject matter of the dispute
is not a dwelling.
8. Determination:
Tribunal Reference TR0316-001678
In the matter of Sinead Cahill, Shauna Fleming (Tenant) and James O’Dowda
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The Residential Tenancies Act does not apply to the property the subject matter of the
dispute.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
08 June 2016.
Signed:
Roderick Maguire Chairperson
For and on behalf of the Tribunal.

 

Kavanagh v Iyahen

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0417-002311 / Case Ref No: 0317-32874
Appellant Landlord: Tom Kavanagh (In his capacity as Receiver over
Certain Assets of Joe Gallagher)
Respondent Tenant: Osaretin Iyahen.
Address of Rented Dwelling: Apartment 11, Distillery Quay, Mill Lane, Navan ,
Co. Meath, C15PR62.
Tribunal: Monica Brennan (Chairperson)
John Conran, Mervyn Hickey.
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2.
Date & time of Hearing: 15 June 2017 at 2:30.
Attendees: For the Appellant:
Alan O’Sullivan (Hayes Solicitors) Agent
John Deignan (Hayes Solicitors) Agent
Owen Murphy (Hayes Solicitors) Agent
Aoife Beirne, Barrister.
For the Respondent:
Osaretin Iyahen,Respondent Tenant
AndrewGuy, Representative for Respondent
Mary Smith, Representative for Respondent
In Attendance: DTI Wordwave Recording Technicians.
1. Background:
On 13 March 2017 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 27 March 2017. The Adjudicator determined that:
The Respondent Receiver shall pay the total sum of €400 to the Applicant Tenant, within
7 days of the date of issue of the Order, being damages for purporting to unlawfully
terminate the Applicant’s tenancy otherwise than in accordance with the provisions of the
Residential Tenancies Act 2004, in respect of the tenancy of the dwelling at Apartment
11, Distillery Quay, Mill Lane, Navan, County Meath.
Subsequently an appeal was received from the Receiver on 20 April 2017 and the
grounds of the appeal were:Other.
The RTB constituted a Tenancy Tribunal and appointed John Conran, Monica Brennan,
Mervyn Hickey as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Monica Brennan to be the chairperson of the Tribunal (“the Chairperson”).
On 12 May 2017 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 15 June 2017 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
The Chairperson confirmed the following details with the Parties present;
a) That rent was €700 per calendar month but had not been paid/accepted since the
appointment of the receiver.
b) A deposit of €700 was paid to Mr. Joe Gallagher
c) The Tenant commenced occupation on 8 January pursuant to a fixed term residential
tenancies agreement entered into with Mr. Gallagher.
d) The Tenant is still in occupation of the dwelling.
e) The identity of each of the parties was confirmed.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing
1. Dudley & District Benefit Building Society v Emerson & Ors [1949] 1 Ch 707
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 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 his case, and that there would be an
opportunity for cross-examination by the Appellant. As it transpired in this case, the
Appellant was making legal submissions only without introducing evidence and so it was
decided that the Respondents factual evidence would be heard before legal submissions
commenced. During the course of the Appellant’s legal submissions, an issue arose as to
whether or not the Borrower had the written consent of his lender to create a tenancy and
Mr. Deignan, on behalf of the Appellant, subsequently gave evidence on that point.
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 she reminded the Parties that knowingly providing
false or misleading statements or information to the Tribunal was an offence.
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.
The Parties were informed regarding the possibility of them seeking to resolve the dispute
themselves and that the Tribunal would endeavour to facilitate this if they so wished. After
a short adjournment to explore this possibility, it was agreed that the hearing would
proceed.
5. Submissions of the Parties:
Appellant Receiver’s Case:
The Representative for the Appellant Receiver, Ms. Aoife Beirne, introduced a
considerable amount of case law and submitted in advance of the hearing 20 pages of
written legal submissions. It is not proposed to recite in full the considerable legal
arguments made. Set out below is the list of cases relied upon by the Appellant Receiver
for reference purposes. Suffice it to say that the Appellant Receiver’s case is, essentially,
that he cannot be bound by a tenancy entered into by Mr. Joe Gallagher (“the Borrower”)
as the Borrower did not get the written consent of the Bank to enter into the tenancy
agreement. Mr. Deignan gave evidence that, to the best of his knowledge, such consent
was not dealt with through his office as solicitors for the Appellant. It is the Appellant
Receiver’s position that the tenancy is void ab initio (from the beginning), and that
consequently the Residential Tenancies Acts do not apply as there is no valid tenancy in
existence. In this case, it is contended that the Respondent is a trespasser in the dwelling
and the Appellant Receiver has submitted that the RTB does not have the jurisdiction to
hear the matter as there is no tenancy in existence.
It is also the Appellant Receiver’s position that he did not tacitly agree to continue the
tenancy as he has never accepted any rental payments from the Respondent.
Cases relied upon by the Appellant Receiver:
1. Re O’Rourke’s Estate [1889] 23 LR 497
2. Taylor v Ellis [1960] 1 Ch 36
3. ICC Bank Plc v Verling & Ors [1995] 1 ILRM 123
4. Fennell v N17 Electrics Limited (in liquidation) [2012] IEHC 228
5. Cotter & Charleton v Landscape House Golf & Leisure Limited ORs [2015] IEHC
6. McCann v John Morrissey & Ors [2013] 288
7. Dudley & District Benefit Building Society v Emerson & Ors [1949] 1 Ch 707
Respondent Tenant’s Case:
The Respondent Tenant has stated that he entered into the tenancy in good faith and that
he was aware that there were issues with the Bank when he signed his tenancy
agreement. He asked the Borrower about this at the time of taking occupation but was
told that it would not affect his tenancy as the Receiver would simply become his landlord.
A part of the Respondent’s case was that he was left with the impression that the
Receiver would be the new landlord. This impression was on foot of a letter from the
Receiver dated 3rd February 2017 which outlined that the Respondent should forward a
copy of his existing lease; contact the office to arrange details of the bank account to
which all future rental payments should be made and that no further rental payments
should be made to anyone but the Receiver. The Respondent also said that he had the
impression that his tenancy was continuing as a result of conversations he had with a
representative of the Receiver, a Ms. Niamh Downey. On questioning from the Tribunal,
he accepted that this was not explicitly said to him by representatives for the Receiver.
Representatives for the Respondent Tenant stated that, in their view, the Residential
Tenancies Acts applied and the Respondent Tenant was entitled to its protections.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. That the Respondent Tenant commenced occupation on the 8th January 2017.
2. That a receiver was appointed over the dwelling on the 26th January 2017.
3. That no valid notice of termination has been served by the Appellant Receiver on the
Respondent Tenant.
4. That no rent has accepted by, or paid to, the Appellant Receiver since his appointment
on 26th January 2017.
5. That no evidence is available showing that the Borrower obtained the written consent
of the Bank to enter into a tenancy agreement.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
and submissions presented to it by the Parties, the Tribunal’s findings and reasons
thereof, are set out hereunder.
7.1 Finding: The Tribunal find that the RTB has jurisdiction to hear the matter.
Reasons:
1. The Receiver’s Representatives have argued that in a case where a borrower has not
sought the written consent of the Mortgagee to create a tenancy then such a tenancy will
be void as against the Bank. However, the Appellant did not sufficiently address the
impact of the Residential Tenancies Acts to that legal position. The case law presented,
while significant in its interpretation of the position of borrowers, receivers and banks,
does not directly consider the impact of the Residential Tenancies Acts. Four of the cases
relied upon by the Appellant pre-date the introduction of the Residential Tenancies Acts
and are therefore of limited use. The Tribunal is required to address the issue of whether
or not the Acts apply on the facts of this case and so any cases which predate the
introduction of that legislation can be of little assistance. Given the remit of this Tribunal, it
is therefore imperative to ascertain whether or not the factual circumstances meet the
requirements of the Residential Tenancies Acts and, therefore, whether or not there is a
valid tenancy in existence.
2. Section 5 of the Residential Tenancies Acts states that “landlord” means the person for
the time being entitled to receive the rent paid in respect of a dwelling by the tenant
thereof. “Tenant” means the person entitled to the occupation of the dwelling under a
tenancy and “tenancy” includes a periodic tenancy and a tenancy for a fixed term. It is
clear from these definitions that when the Respondent Tenant entered into an agreement
with the Borrower on the 8 January 2017 that a valid tenancy was created.
Notwithstanding the fact that the Borrower may or may not have obtained written consent,
it is the case that, on 8th January 2017, he was the person entitled to receive the rents
and therefore validly a landlord. The Tribunal makes no finding on whether or not the
Bank has recourse against the Borrower for any failure to obtain such consent and/or
breach of the conditions of his mortgage contract but, nevertheless, the Borrower met the
criteria for the definition of a landlord under the Residential Tenancies Acts and, thus, a
valid tenancy was created at that time. The question is whether or not the subsequent
appointment of the Receiver takes a valid tenancy out of the remit of the Residential
Tenancies Acts.
3. The Appellant Receiver asserts that it does just that. It is contended that, by virtue of
the case law outlined above, that the tenancy is void and cannot be enforceable against
the Bank. Relying on Fennell v N17 Electrics Limited the Receivers position is that this is
the leading case which he seeks to rely on and it found that if written consent is not
obtained then a lease will be binding on the Borrower who entered into the lease but will
not be binding against the Mortgagee, or Bank. This position is accepted. However, it still
does not address whether or not the Residential Tenancies Acts apply. While the lease
that the Borrower executed may be void, and the Bank may not be bound by that, this
does not address whether or not the Residential Tenancies Acts are applicable as the
issue did not arise in that case. Similarly, the substantive issue in the remaining cases is
not concerned with the applicability of the statutory rights afforded under the Residential
Tenancies Acts, even though they may make some reference to the existence of
residential tenancies, it does not appear to have been argued and the decisions do not
address whether or not the protection afforded to tenants applies in those particular
circumstances. It is therefore for this Tribunal to determine if it considers that the
Residential Tenancies Acts continue to apply in this instance.
4. The Appellant Receiver’s Representative states that not to accept the position outlined
above would be to create new law and that if it had been the intention to make provision
for such circumstances then it would have been explicitly set out in the legislation. This in
turn draws attention to what the legislation does say on the issue of termination. Section
58(1) of the Residential Tenancies Acts states that a tenancy of a dwelling may not be
terminated by the landlord or the tenant by means of a notice of forfeiture, a re-entry or
any other process or procedure not provided by this Part. Section 59 goes on to say that
neither any rule of law, nor provision of any enactment in force immediately before the
commencement of this Part, which applies in relation to the termination of a tenancy (and,
in particular, requires a certain period of notice) shall apply in relation to the termination of
a tenancy of a dwelling. Given the wording of Section 59, that no rule of law which applies
in relation to the termination of a tenancy shall apply, it is difficult to accept the position
that a once valid tenancy under the Residential Tenancies Acts is rendered void as a
Borrower did not obtain the necessary consents. While the Appellant Receiver is
asserting that the tenancy is void, it would seem that, rather, the tenancy agreement that
the Borrower executed is void but not the existence of a tenancy under the Residential
Tenancies Acts. It is the Tribunal’s view that the Residential Tenancies Acts have
addressed the issue of termination, and the conclusion is that a tenancy can only be
terminated under the specific provisions of the Residential Tenancies Acts.
5. While the Bank may not be tied in to the lease agreement signed by the Borrower,
which may indeed be considered void as against the Bank in accordance with the case
law described above, there is no doubt that a valid tenancy was created and, given the
wording of sections 58 and 59 of the Residential Tenancies Acts, that valid tenancy
cannot be terminated otherwise than in accordance with the provisions set out under the
Residential Tenancies Acts. Regard must also be had to the very purpose of the
Residential Tenancies Acts namely, as set out in the Title of the Acts, to provide for a
measure of security of tenure for tenants. That security, where a tenant has been in
continuous occupation in excess of 6 months, includes provision that the tenancy cannot
be terminated without a valid reason. The Appellant Receiver asserts that it would be
unfair to deprive the Bank of its asset by accepting the existence of a tenancy, but that is
simply not the case. The Residential Tenancies Acts make provision for terminating a
tenancy in the event of, for example, the sale of a dwelling. Accepting that any tenancy
over which a mortgage exists could potentially become void on the appointment of a
receiver by virtue of the fact that written consent was not sought by a borrower would run
directly contrary to the purpose of the Residential Tenancies Acts and the protections
afforded therein. It is our view that the Acts do apply in this instance; that a tenancy under
those Acts is in existence and that, consequently, the RTB has jurisdiction to deal with the
matter.
6. For the reasons set out above, we find that a tenancy within the meaning of the
Residential Tenancies Acts exists in relation to the dwelling in question and,
consequently, that the RTB has jurisdiction to hear the matter.
7.2 Finding: We find that the tenancy was not validly terminated in accordance with the
Residential Tenancies Acts 2004 – 2016.
Reasons:
1. As set out above, having found that the Residential Tenancies Acts apply to an existing
tenancy and, it being agreed by all parties that no valid notice of termination has been
served, we find that the tenancy was not validly terminated as required by the Residential
Tenancies Acts.
8. Determination:
Tribunal Reference TR0417-002311
In the matter of TomKavanagh, Receiver over Certain Assets of Joe Gallagher
(Landlord) and Osaretin Iyahen (Tenant) the Tribunal in accordance with section
108(1) of the Residential Tenancies Act 2004, determines that:
The Appellant Receiver’s application, regarding the jurisdiction of the RTB to hear a
dispute in respect of the tenancy of the dwelling at 11 Distillery Quay, Mill Lane,
Navan, Co. Meath, is not upheld.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
07 July 2017.
Signed:
Monica Brennan Chairperson
For and on behalf of the Tribunal.

Kingston v Fitzgerald

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Repdort of Tribunal Reference No: TR0316-001690 / Case Ref No: 0116-23656
Appellant Landlord: Dave Kingston
Respondent Tenant: Mary Fitzgerald
Address of Rented Dwelling: 20 Kerry Road, Mayfield , Cork,
Tribunal: Helen-Claire O’Hanlon (Chairperson)
Aidan Brennan, Rosemary Healy Rae
Venue: Committee Room 1, Cork City Council, City Hall,
Anglesea Street, Cork
Date & time of Hearing: 20 May 2016 at 11:00
Attendees: David Kingston (Appellant Landlord)
Laura Kingston (Witness, Daughter of Appellant
Landlord)
Mary Fitzgerald (Respondent Tenant)
Eileen Farmer (Witness / Representative)
Eoin Fitzgerald (Witness, Brother of Respondent
Tenant)
Eileen Fitzgerald (Witness)
In attendance under subpoena:
Denise O’Brien (Witness)
Karen Kiely (Witness)
In Attendance: DTI Wordwave Recording Technicians
1. Background:
On 19 January 2016 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 19 February 2016. The
Adjudicator determined that:
The Respondent Landlord shall pay the sum of €2,762.25 to the Applicant Tenant
within 42 days of the date of issue of the Determination Order, being damages in the
sum of €2,500.00 for the unlawful termination of the tenancy and the sum of €262.25
being the unjustifiably retained portion of the security deposit of €350.00 having
deducted the sum of €87.75 for outstanding utilities in respect of the tenancy of the
dwelling at 20 Kerry Road, Mayfield, Cork.
On 24 March 2016 the Landlord appealed to the Tribunal against the determination of the
adjudicator. The grounds of the appeal were Invalid Notice of termination, Breach of
landlord obligations and Unlawful termination of tenancy (Illegal eviction). This appeal
was approved by the Board of the RTB on 31 March 2016 and the dispute was referred to
the Tribunal.
The RTB constituted a Tenancy Tribunal and appointed Helen-Claire O’Hanlon, Aidan
Brennan and Rosemary Healy Rae as Tribunal members pursuant to Section 102 and
103 of the Act and appointed Helen-Claire O’Hanlon to be the chairperson of the Tribunal
(“the Chairperson”).
On 26 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 20 May 2016 the Tribunal convened a hearing at Committee Room 1, Cork City
Council, City Hall, Anglesea Street, Cork.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
On the first day of the hearing the following documents were submitted on behalf of the
Landlord. The documents were shown to the Tenant in advance of her submission and
she was afforded an opportunity to indicate whether there was an objection to their
submission. The Tenant consented to the documents being received and considered by
the Tribunal:
• “Tenancy Agreement / Houseshare” document signed by David Kingston and Denise
O’Brien
• “Tenancy Agreement / Houseshare” document signed by David Kingston and Karen
Kiely
• “Tenancy Agreement / Houseshare” document signed by David Kingston and Mary
Fitzgerald
• “Ticket Order Form” for Career Options (Cork) 2015
• Printout of Viber text from Mary Fitzgerald dated 05/02/2016
On the second day the following documents were submitted, and no objection was raised
by either party to the Tribunal considering the documents
• Statement from Eileen Fitzgerald
• Personal Statement of David Kingston
4. Procedure:
This is a hearing which took two days to conclude. On the first day of the proceedings,
the following matters were outlined: 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 entitled “Tribunal Procedures”. Both parties confirmed that
they had done so and it was confirmed that the parties had read and understood them.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be as informal as was possible. The Chairperson said
that members of the Tribunal might ask questions of both parties from time to time. She
also stated that the parties must follow any instructions given by the Chairperson and
directed that neither party should interrupt the other when oral testimony is being given.
The Chairperson explained that as this was the Landlord’s appeal he would be invited to
present his case first and that there would be an opportunity for cross-examination by the
Respondent Tenant. The Respondent Tenant would then be invited to present her case,
and then there would be an opportunity for cross-examination by the Appellant Landlord.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson indicated that she would be willing to clarify any queries in relation to the
procedures either then or at any stage during the course of the Tribunal hearing.
The Chairperson stated 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. It
was explained to the parties that as a result of this Hearing, 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 pursuant to Section 123(3) of the 2004 Act. All persons
giving evidence to the Tribunal were then sworn in. At the conclusion of the hearing on
the 20th of May 2016 the proceedings were adjourned and a further hearing date was
fixed for the 27th of June 2016.
5. Submissions of the Parties:
The Tribunal had regard to the oral evidence of the parties and their witnesses and also
gave detailed consideration to the very voluminous documentation and written
submissions which were submitted by each of them.
Evidence of the Appellant:
Evidence of the Appellant Landlord David Kingston:
The Landlord appealed the finding of the adjudicator on two grounds. Firstly he claimed
that there was a jurisdictional issue as he was also residing in the dwelling and therefore
the Act did not apply to the tenancy. Secondly, he denied that there had been any breach
of landlord obligations in how the tenancy had been terminated. He also claimed that he
was seeking to retain the entire of the Tenant’s deposit on the basis that she had caused
damage to the dwelling which was in excess of normal wear and tear.
The Landlord made submissions in respect of the first of these issues. He claimed that
the Tribunal had no jurisdiction to hear the dispute as he was also resident in the
dwelling. In support of this the Landlord submitted an extensive assortment of
documentation which was addressed to him at the dwelling. He also outlined in his
evidence that he had always lived in the dwelling, that it was his family home, and that he
and his late wife had lived there with their children. His daughter Laura had grown up in
the house and it was only because of a situation of financial necessity, being that he had
retired and his daughter’s college fees had to be paid, that they had decided to take in
tenants in a “lodger-type” scenario. He claimed that it was made clear to all three tenants
before they moved in that they would be residing in a family home, that there were two
dogs which were his daughter Laura’s responsibility, and that there was a section of the
house which was Laura’s private area. He gave evidence that the bedroom where she
slept had always been her private area. He described the layout of the building and stated
that down at the end of a corridor there was a “fourth door” into Laura’s room and that
beyond that there was a “fifth door” which led to his part of the house. He stated that he
never entered into the communal living spaces in the rest of the house. He said that he
did not wish to encroach on the living areas, kitchen or bathroom used by the others in
the house. He described his living accommodation as a bedsit type unit, which was part
of a converted garage. He stated that it was a self-contained residential unit with its own
entrance which was not linked to the alarm for the rest of the house. He said that it had
basic cooking facilities, a microwave and a George Foreman grill, toilet facilities, and a
television that he could watch films on. In his evidence on the first day of the hearing he
stated that he also slept in that room. He gave different evidence on the second day of
the hearing and stated that he could use all the facilities in the end room but that in fact
his bed was in his daughter Laura’s room and that was where he slept. In relation to the
Tenant’s questions and submissions that he had not in fact been living in the dwelling and
that the day of the adjudication was the first time she had heard this assertion, he
submitted that he had maintained a façade until that date, even going so far as to send
texts saying he was coming to the dwelling to collect rent or do repairs. This was, he
claimed, in order to preserve the sense of privacy of the tenants and so they would not
feel they were being intruded upon. He opined that it would be quite possible for none of
the three tenants to know he was living there because they worked different hours, he
used a separate entrance; he parked his car elsewhere and did not ever transgress the
door that would have brought him into the Tenants’ section of the property.
The Landlord relied upon two signed statements from the other two tenants who were
residing in the dwelling, which stated that they acknowledged that he was residing in the
dwelling. In cross examination he accepted that they would not have known that, while
the Respondent Tenant was still in occupation and that their statements were simply to
put on record that they were now aware that he had been there.
The Landlord submitted three documents headed “Tenancy Agreement / Houseshare”
which were purportedly signed by each of the Tenants. He said that the girls were
entering into the dwelling as lodgers and that he did not wish to be tied to long term
leases.
In respect of his claim of breach of obligations by the Tenant and the termination of the
tenancy itself, he claimed that there had been numerous difficulties throughout the
tenancy, which had started with a dispute over the parking space in the driveway between
his daughter and the Respondent Tenant. He stated that he felt the Tenant had been
strident and aggressive over this issue and that she had always been made aware that
parking in the driveway was exclusively for his daughter’s use. There were issues with
regard to the lighting of candles which were brought to his attention by his daughter and
he distributed a written warning in September 2015. He claimed that further issues arose
between his daughter and the Tenant, and he was concerned about the impact that was
having on his daughter’s emotional, physical and psychological wellbeing. He claimed
that the situation continued to deteriorate and at Christmas time there was an issue about
the storage by the Tenant of a large number of empty alcohol bottles in the dwelling. He
claimed that this caused a health and safety concern for all occupants of the dwelling.
After the Christmas holidays he claimed that he felt he had to do something to protect the
wellbeing of the other occupants so he served a written notice on the 1st of January 2016
giving the Tenant one month’s notice that her tenancy would end on the 31st of January.
He claimed that thereafter the Tenant had referred the issue to Threshold and he took
issue with how the Tenant had dealt with matters and that she had refused to make
herself available for a discussion about her unsatisfactory behaviour. The Landlord
claimed that the Tenant had caused damage to the front door lock on around the 2nd of
January 2016 when she bent her key in the lock, and thereafter the door would not
double lock which was a security concern for all occupants. He accepted on questioning
by the Tribunal that the double-locking mechanism on the door was in fact operated by a
wheel lock and not by the lock which was operated by the key. He claimed further that the
Tenant caused a mould problem in her bedroom by not keeping the door closed when
she was using the shower in her en-suite bathroom.
On the 4th of February 2016 he outlined that his daughter, without his knowledge or
consent, bagged up the Tenant’s belongings and removed them from her bedroom while
she was at work. He claimed that although he had not instructed her to do this, and had
not sanctioned it, he brought the bags of belongings to the Tenant’s place of work. He
vehemently denied that he had dumped the bags at her workplace as the Tenant
contended, and said that he placed them there. He was midway through that process
when he was approached by a staff member as he unloaded the bags from his car and
he informed that individual that the bags were for the Tenant. He said that he told the staff
member that she had asked not to be disturbed and accepted the assistance of that
individual and some students in bringing the bags up the steps and into the building. At
some point he stated that a lady had come out and asked him who he was but he felt that
he should not engage and so he did not respond. He simply left. The following day he
facilitated the Tenant’s father in collecting the remainder of her belongings from the
dwelling. The Landlord outlined that he felt he had to take action because of persistent
breaches of house rules by the Tenant, because her behaviour in the dwelling had been
hostile and inappropriate and because he felt his daughter was on the verge of a
breakdown.
The Landlord claimed that he was entitled to retain the entire deposit of €350 because the
Tenant had caused a mould problem which required redecorating works to rectify and
that materials had cost €128.35. In addition he claimed that the damage to the front door
lock had required its replacement at a cost of €295.
Evidence of Laura Kingston:
Laura Kingston attended the hearing as a witness for the Landlord, who is her father. She
claimed that the Tenant was aware from the start that the Landlord was her father. She
claimed that she considered the Tenant a lodger. She claimed that they did not see much
of each other but that there were no major issues until September when the disagreement
arose about the parking and that following this she had tried to achieve a compromise but
that the Tenant would not compromise. Ms Kingston outlined that there was progressively
an atmosphere of negativity in the house and that the Tenant was hostile and aggressive
and that she felt isolated. In addition there were other issues, such as the leaving of
unattended lit candles by the Tenant which made her feel nervous and scared.
In the approach to the Christmas holidays she stated that she was cleaning the house for
guests and she asked the Tenant to remove empty bottles from a room in the dwelling,
which she claimed were unclean. She stated that the Tenant instead put them in a small
hot press where they caused a bad smell. She felt that this was a deliberate move against
her. The Tenant refused to remove them when requested by text message so she
addressed her concerns to her father and they were removed and ultimately disposed of.
She said that when the Tenant returned to the dwelling after the holidays she heard her
commenting very loudly about the damp in her room and she felt it was aimed at her
because her father was the Landlord. The situation was very unpleasant; she said that
the Tenant was deliberately noisy to disturb her, was using terrible language, being
offensive and intimidating. She said that she felt like moving out but did not see why she
should have to move out of her family home. She tried to avoid the Tenant and stayed
away from the house. After the Notice letter had been served and the Tenant had sought
the intervention of Threshold, the Landlord’s daughter stated that she also sought help
from Threshold, in respect of the behaviour of the Tenant towards her. She said she was
upset that the person she contacted had said there was a conflict of interest and didn’t
refer her on to someone else, as she felt there was no protection for her.
In relation to the Landlord’s evidence that he was residing in the dwelling she agreed that
he was living there and outlined that it was possible to sneak in and out of the door at the
end of the house and that she had been doing so since she was in her teens. She
outlined that it was possible to separate herself from the other Tenants, that she viewed
them all as lodgers and she kept very private and kept her room locked.
Evidence of the Respondent Tenant:
Mary Fitzgerald
The Tenant did not accept that the Landlord had ever resided in the dwelling while she
was living there. She referred to the communications between them and stated that he
had always used language which suggested he was not living there. The Tenant claimed
that it was simply implausible that the Landlord was residing secretly in the dwelling all
along. The Tenant took particular issue with the contention made on the second day of
the hearing that the Landlord was sharing a bedroom with his daughter. She outlined that
the Landlord’s daughter’s boyfriend stayed overnight several times each week and
questioned the reality of the alleged sleeping arrangements in that context. She also
highlighted the fact that the Landlord had not produced any photos of the part of the
dwelling where he alleged he had been residing.
She submitted that it would be normal and natural if a person had been living somewhere
a long time that their post would continue to go to that address even if the person had
moved elsewhere, as long as they continued to have access to post at that address. She
opined that the correspondence submitted by the Landlord addressed to him at the
dwelling illustrated nothing but that he had not changed his correspondence address to
where he was actually residing. She did not accept that the Landlord had given up his en
suite bedroom temporarily for the purpose of her tenancy and claimed that in May 2015
when she came to view the dwelling, there was another lady there and she was given to
understand that she had been renting the en suite bedroom prior to her and was moving
out.
The Tenant took issue with the written tenancy agreement and said she did not believe it
was the document she had signed. She also submitted a statement from her mother
saying that she also felt that it was not the same document as she had seen at the start of
the tenancy. The Tenant stated that she felt sure she had signed a lease for a year but
she was unable to locate her copy of the lease.
In relation to the Landlord’s claims of breach of tenant obligations, she claimed that the
empty spirit bottles were items which she had been collecting for the creation of a “mockbar”
for her students in a hospitality class. She claimed that she had been gathering them
for some time, that they were not unclean and were valuable only to her for work
purposes. The request that she remove them from the hot press was only sent to her by
text when she was already traveling to her family home for Christmas. The bottles were
removed without her consent and she was deprived of them. She stated that she had
never lit any candles after it was forbidden by the Landlord. She noted that although fears
were raised about the lighting of candles there were no such concerns about the
Landlord’s alleged operation of a gas burner and a George Forman grill in his bedsit.
In relation to claims of breach of tenant obligations, the Tenant submitted that she was
not liable for the changing of the front door lock. Her key had become bent in the lock by
accident and still functioned to open and close the door. She had never even been aware
that the door could double lock, it was not something that she did with her key. The
Landlord had not replaced like with like when replacing the lock, but rather had upgraded
the lock on the door, and he had only changed the lock after she was unlawfully evicted.
The issue with the mould existed in another bedroom in the dwelling and was not caused
by her use of the shower in the en suite. She felt that it must be due to a structural
problem in the dwelling. The Tenant claimed that she was extremely upset and disgusted
by the personal accusations about her behaviour and denied that she had ever behaved
in the anti-social or disruptive manner described. She claimed that she was probably the
quietest occupant of the dwelling and was in her room early each evening trying to
prepare for classes.
In summary the Tenant claimed that the Landlord was not a resident of the dwelling as
described and that his actions did not follow the law. She claimed that she had been
unlawfully ejected from the dwelling and that the behaviour of the Landlord was
intimidating and unjustified. She claimed that she is now living with her parents which
necessitates long travel times to and from her workplace. She claimed that it was
extremely embarrassing at the time that her tenancy was terminated to encounter her
new manager angrily asking why there was a man dumping black bags on the steps of
the college. She claimed that the whole experience was extremely distressing, a cause of
immense stress and has resulted in a great loss of confidence. The Tenant claims she is
entitled to the return of her deposit and reparation for the upset and inconvenience arising
from the termination of her tenancy.
Evidence of Denise O’Brien and Karen Kiely:
The above two witnesses are the other tenants in the dwelling and attended under
subpoena on the first day of the hearing. They each confirmed that the statements
submitted by the Landlord to the effect that they acknowledged that he was residing in the
dwelling had been signed by them. In response to questioning they each confirmed that
they were not aware that the Landlord was residing in the property until after the
adjudication hearing. Denise O’Brien gave evidence that the statement was typed up by
herself but Karen Kiely gave evidence that she was given the typed statement by the
Landlord and asked to sign it. They both confirmed that they were not afraid of the
Landlord. It was put to them that the Tenant had offered them a financial inducement to
vacate the dwelling and they agreed. This was clarified in the evidence of the Tenant that
she had offered to cover their deposit on a new tenancy in the event that they moved out
and the Landlord withheld their deposit.
6. Matters Agreed Between the Parties
• The tenancy commenced on the 1st of June 2015. The Tenant had access to the
dwelling prior to this date for the purpose of moving in her belongings. The Tenant paid
additional monies for this advance period.
• The rent payable to the Landlord by the Tenant each month was €350.
• The Tenant paid a deposit of €350 to the Landlord, which is retained in full by the
Landlord.
• The Tenant accepts that €87.75 was due for services / utilities at the time that the
tenancy concluded.
• The Landlord served a Notice letter on the Tenant on the 1st of January 2016 giving a
termination date of 31st of January 2016.
• The Tenancy ended on the 4th of February 2016.
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence
presented to it and/or submitted to it by the parties, the Tribunal’s findings and reasons
therefor are set out hereunder.
Finding No.1: The Tribunal finds that the Respondent Tenant’s tenancy was a tenancy of
a dwelling within the meaning of the Act and accordingly the Tribunal has jurisdiction to
determine the dispute.
Reasons: Pursuant to s.85 of the Act, a Tribunal may not deal any further with a dispute if
the Tribunal is of the view that the situation envisaged in s.84(1)(a) applies, that being
that the dwelling the subject of the dispute, is not a dwelling to which the Act applies.
The Application of the Act is set out in s.3, which states that the Act applies to every
dwelling the subject of a tenancy save those exceptions set out in subsection (2). The
relevant exceptions, as relied upon by the Appellant Landlord are contained in s.3(2)(g),
being a dwelling in which the landlord also resides and s.(3)(2)(h), being a dwelling within
which (among other cited family members) a child of the landlord resides, and where no
lease or tenancy agreement in writing has been entered into by any person resident in the
dwelling.
The Landlord made submissions primarily in respect of the first of these exceptions,
namely that contained in ss(2)(g) that this was a dwelling in which he was also residing.
In support of this the Landlord relied upon an extensive assortment of documentation
which was addressed to him at the dwelling. He also outlined in his evidence that this was
his family home and had been for many years. It was the Landlord’s contention that the
Tenant was residing in the dwelling in a “lodger-type” scenario.
The Tribunal had serious misgivings about the credibility of the Landlord’s evidence,
particularly in circumstances where his account of his living accommodation, and
particularly where he was sleeping, changed markedly between the first day and the
second day of the hearing. The Tribunal had regard to the nature of his correspondence
to the Tenant prior to the matter being referred to the PRTB and the use of such phrases
by the Landlord in his text messages to the Tenant as: “I’m agreeable to open the house”,
“Will be up tonight to collect the rent”, “I’m outside the house to collect your overdue rent”,
“One of the remedial tasks I came up for…”. The phraseology suggests that the Landlord
was not resident in the dwelling but rather attended at the property for the purpose of
managing aspects of the tenancy. In addition to this, the Tribunal noted that the
contention that the Landlord was residing within the dwelling for the duration of the
tenancy was one which was raised only in the context of the dispute and was not an
assertion which was made prior to the correspondence from Threshold.
Notwithstanding those concerns, the Landlord accepted in his own evidence that the
section of the property in which he claimed to reside, covertly, could be best described as
“bedsit” accommodation. He acknowledged that it was a self-contained residential unit
and that he did not share any of the communal living areas of the rest of the property,
those being bathroom, kitchen, dining and living space. He had a separate entrance and
never traversed the dividing door between his area in the property and the area which
was for the exclusive use of the tenants.
The question of what comprises a dwelling is dealt with, albeit sparsely, in the
Interpretation section of the Act, at s.4. A “dwelling” is a property let for rent or valuable
consideration as a self-contained residential unit. A “self-contained residential unit” is
further described in the same section as including the form of accommodation commonly
known as bedsit accommodation.
The issue of the application of s.3(2)(g) was considered in the case of Tully v PRTB
[2014] IEHC 554, in the decision of Mr Justice Keane dated the 6th of November 2014. In
that case, the determination of a Tribunal that the Landlord was resident in the dwelling
with the Tenant was based on a finding of fact that the Landlord had full access to and
use of the entire of the Dwelling excluding only the Tenant’s bedroom. That finding was
upheld on the facts of the particular case.
Reference was also made in the decision of Keane J. to the PRTB Tribunal decision in
Zhang v Holohan (17th January 2012, Reference No. R168/2011/DR92/2011). The Court
considered the analysis of the landlord’s argument in that case that the property
concerned fell outside the scope of the Act because it was not a “dwelling”, as that term is
defined under s. 4(1) of the Act, on the basis that it was not “a self-contained residential
unit” as follows:
“31. In its decision in Zhang v. Holohan, the Tribunal held itself bound to give the term
“self-contained residential unit” its ordinary and colloquial meaning, on the authority of the
decision of the Supreme Court in Inspector of Taxes v Kiernan [1981] IR 117. In doing so,
it concluded:
“It is the view of the Tribunal that the ordinary meaning of “self-contained” as regards a
unit means – “containing within itself all parts necessary for completeness” or put another
way “something which is complete on its own and doesn’t need anything else” or
“constituting a complete and independent unit of itself.”
Consequently, a “self-contained” residential unit must mean a unit which enables the
person residing there to have all the essentials for living i.e. for sleeping, washing,
cooking, toiletry and relaxing.”
This Tribunal has regard to both the above authorities and finds that the living
arrangements in the case of Tully v PRTB were in direct contrast to the living
arrangements described in this case, where the Landlord, on his own evidence, resides in
a separate, self-contained residential unit within the same building, and specifically
denied that he had access to and use of the entire of the Dwelling. Moreover, the
definition of a self-contained residential unit in Zhang v Holohan is informative, in that it
refers to the requisite elements as described by the Landlord in this case, namely that he
had a unit with all the essentials of living. That unit was, by his own evidence, separate to
the portion of the property inhabited by the Tenants. Indeed, the area in which the
Tenants resided, and into which the Landlord did not encroach, was a unit which enabled
her and the other tenants to have all the essentials for living i.e. for sleeping, washing,
cooking, toiletry and relaxing.
The Tribunal holds that the property described therefore contained two separate units.
One which was inhabited by the Landlord and one which was inhabited by the Tenant
and her co-tenants.
The second exception contemplated in s.3(2)(h) relates to a dwelling within which a child
of the Landlord also resides and where no lease or tenancy agreement in writing has
been entered into by any person resident in the dwelling.
It was common case that the daughter of the Landlord resided in the dwelling together
with the Tenant and two others. The Landlord submitted three almost identical
documents, two of which were signed by the other two occupants of the dwelling and one
which was purportedly signed by the Tenant. Those documents are entitled “Tenancy
Agreement / Houseshare”. Reference is made in the document to landlord, tenant, rent,
security deposit, notice, maintenance, and various rights and obligations which arise.
These are all features of a standard tenancy agreement. The agreement is in writing.
There is no definition of what must be contained in a written tenancy agreement in the
Act, and the Interpretation section elaborates on the term “tenancy agreement” only to
state that it includes an oral tenancy agreement. The Tribunal finds that giving the phrase
its simple meaning, and having regard to the definition of a dwelling, a tenancy
agreement is an agreement between a Landlord and a Tenant that the Tenant may
occupy a dwelling for the payment of rent. A written tenancy agreement might set out very
extensive terms of that agreement, or the agreement might be very basic and might be
supported or qualified by further terms in ancillary or oral agreements between the
parties. The terms of a lease or tenancy agreement can be varied by agreement between
the parties during the course of a tenancy. The Tribunal is satisfied that there was a
written tenancy agreement entered into by the parties and therefore the exception in
s.3(2)(h) does not apply.
In all the circumstances, the Tribunal is satisfied that the exceptions set out at ss.3(2)(g)
and 3(2)(h) do not apply and the dwelling is the subject of a tenancy agreement to which
the Act applies. The Tribunal can therefore move on to deal with the assertions of fact
and alleged breaches of obligations under the Act.
Finding No. 2: The purported Notice of Termination served by the Appellant Landlord
upon the Respondent Tenant on the 1st of January 2016 is invalid.
Reasons: The tenancy commenced on the 1st of June 2015 and the Respondent Tenant
was in continuous occupation of the dwelling for a period in excess of six months. A
tenant who has been in occupation of a residential dwelling for a continuous period of 6
months enjoys the benefit of protection as outlined in Part 4 of the Residential Tenancies
Act 2004 (as amended), primarily the right to continue in possession as tenant for the
period of four years from the commencement of the tenancy, or until the expiration of a
period of notice, whichever is the later. A tenancy continued by virtue of the provisions of
section 28 after the initial period of six months, is described in section 29 as a “Part 4
Tenancy”, and a tenant with such a tenancy may remain in possession unless the
tenancy is lawfully determined in accordance with the requirements of Part 4 of the Act.
Section 34(1) allows a landlord to terminate a Part 4 tenancy for breach of tenant
obligations, provided that the landlord has notified the tenant of the breach and afforded a
reasonable opportunity to remedy the breach, and the tenant has failed to remedy the
breach. If that process has been observed, a landlord is entitled to serve a notice of
termination on the tenant giving 28 days’ notice. In order to be valid, a Notice of
Termination must comply with s.62 of the Act, namely that it must: be in writing; be signed
by the landlord or his or her authorised agent; specify the date of service of it; be in such
form (if any) as may be prescribed; if the duration of the tenancy is a period of more than
6 months, state the reason for the termination; specify the termination date, specify that
the tenant has the whole of the 24 hours of the termination date to vacate possession;
and state that any issue as to the validity of the notice or the right of the landlord to serve
it must be referred to the Board within 28 days from the date of receipt of it.
The Tribunal had regard to the alleged breaches of tenant obligations and were not
satisfied that any of the purported breaches which the Landlord or his daughter
complained of were breaches of tenant obligations, as opposed to simply interpersonal
difficulties between the Tenant and the Landlord’s daughter. The Tribunal was not
satisfied that there was any evidence of bullying or aggressive behaviour on the part of
the Respondent Tenant. The Tribunal is not satisfied that lighting candles, storing empty
bottles temporarily in a cupboard, quarrelling over a parking space or refusing to make
oneself available to discuss behaviour are breaches of a tenant’s obligations. The
Tribunal finds that there was insufficient evidence to support the contention that the
actions of the Tenant caused the mould problem in the bedroom, particularly in
circumstances where the heating was a shared expense between all parties and where
there was no evidence of the condition of the bedroom prior to the tenancy, or indeed
photographic record after the tenancy. Further, the Tribunal does not accept that the
accidental bending of a key in a lock amounts to a breach of tenant obligations. In all the
circumstances, the Landlord was not entitled to rely upon the ground set out in s.34(1) of
the Act. In addition, the Notice which was served does not comply with the provisions of
s.62 of the Act as it does not contain the requisite elements set out in that section.
Finding No. 3: The termination of the Respondent Tenant’s tenancy on the 4th of
February 2016 was unlawful.
Reasons: Pursuant to s.58 (1) of the Act, a tenancy of a dwelling may not be terminated
by a landlord by means of a notice of forfeiture, a re-entry or any other process or
procedure not provided by Part 5 of the Act. The Landlord was not entitled to simply
remove the Tenant’s belongings, refuse to allow her continue with her tenancy and
change the lock on the dwelling. Further to s.12(1)(a) of the Act a Landlord is obliged to
allow a Tenant peaceful and exclusive occupation of a dwelling. While it is quite clear
from the evidence of all witnesses that there had been a significant deterioration in the
interpersonal relations between the Tenant and the daughter of the Landlord, the nature
of the conflict on the evidence does not exceed a significant disharmony between those
two individuals. The Tribunal does not accept on the evidence that the Tenant had
behaved in a threatening or aggressive manner. The Tribunal was not satisfied that there
was any justification for the actions of the Landlord’s daughter in bagging up the
belongings of the Tenant and announcing to the Tenant by text message that they should
be collected by lunchtime or that they would be dropped to her workplace. When the
Landlord was contacted about this by the Tenant he did not take any steps to remedy this
situation, instead he acted upon it, and transported the bagged belongings to the
Tenant’s workplace. The Tribunal considers that this was a wholly inappropriate action on
his part, and based on the Tenant’s evidence was a cause of extreme distress and
professional embarrassment to the Tenant. Further, the Tribunal had regard to the fact
that although the Tenant’s key had become bent in the lock on or about the 2nd of
January 2016, the Landlord did not replace the lock until the 4th of February 2016, the
day upon which the Tenant was prevented from re-entering the dwelling.
The Tribunal finds that, in contravention of the provisions of sub-section (1) of section 58
of the Act, the tenancy was terminated by means of a process other than one provided for
under the Act, that the Tenant was accordingly unlawfully evicted and deprived of her
tenancy, and that the Tenant is entitled to damages in the sum of €3,500 for that breach
of landlord obligations. This sum is arrived at in the context of a maximum jurisdiction of
€20,000. The tenancy was terminated by means of exclusion of the Tenant and her
belongings. The Tribunal has regard to the fact that the Tenant was not deprived of her
belongings but notes that it was very embarrassing to have some of them deposited at
her workplace, and further inconvenient for the Tenant to have to retrieve the remainder
of her belongings piecemeal with the assistance of her father.
It is accepted on the evidence that the experience was very upsetting for the Tenant and
that she suffered distress, disturbance, inconvenience and personal embarrassment.
The damages are therefore assessed at the lower range of the scale at €3,500, having
regard to the degree of distress, disturbance, loss, expense and inconvenience incurred
by the Tenant. The Tribunal commends the candour of the Landlord in approaching the
issue of his breach of s.58(1). However, the explanation proffered is not accepted to
amount to mitigation in circumstances where the mechanism of the RTB dispute
resolution process was in train and was yet to conclude. This is in direct contravention of
s.86(1)(c) of the Act, which provides that pending the determination of a dispute which
has been referred to the Board in relation to a tenancy, a termination of that tenancy may
not be effected.
Finding No. 5: The Appellant Landlord has unlawfully retained the sum of €262.25 from
the Respondent Tenant’s deposit of €350.
Reasons: Pursuant to s.12(1)(d) of the Act, a landlord is obliged to refund a security
deposit on gaining vacant possession of a dwelling, less any amounts properly withheld in
accordance with the provisions of the Act. A landlord is entitled to retain all or part of a
security deposit where there are rent arrears or other charges or taxes due at the end of
the tenancy or where the tenant has caused damage which is in excess of normal wear
and tear. The security deposit is the property of the tenant and the onus of proof therefore
falls on a landlord to establish in evidence an entitlement to retain all or part of it.
The parties agreed that a security deposit of €350 was paid by the Tenant and this has
not been returned to her. The Tenant acknowledged herself liable for utility bills in the
sum of €87.75. The Landlord’s claim that the Tenant was liable for the cost of
redecorating works in the dwelling was unsupported by evidence of any alleged damage.
Moreover, it is noted that the Landlord purchased paint and materials without notice or
discussion on the morning that the tenancy was unlawfully terminated and the Tenant
was given no opportunity to assess any alleged damage, to dispute same, or to take any
steps of her own in that regard. In respect of the replacement of the front door lock, the
evidence at the Tribunal was that the door did in fact continue to lock from the inside after
the key was bent in it, the key continued to work in opening the lock and it was only the
double-lock mechanism, operated by a wheel, which was not working. There was
insufficient evidence adduced to suggest that this was anything to do with the incident in
which the key was bent in the lock and the Tribunal is not satisfied that the Landlord has
established that the requirement for a replacement lock was attributable to any action of
the Tenant.
8. Determination:
Tribunal Reference TR0316-001690
In the matter of Dave Kingston (Landlord) and Mary Fitzgerald (Tenant) the Tribunal
in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Landlord shall pay the sum of €3,762.25 to the Respondent Tenant
within 14 days of the date of issue of the Determination Order, being damages in the
sum of €3,500.00 for the consequences of the unlawful termination of the tenancy of
the dwelling at 20 Kerry Road, Mayfield, Cork together with the sum of €262.25 being
the unjustifiably retained portion of the security deposit of €350.00 having deducted the
sum of €87.75 for outstanding utilities, in respect of the tenancy of the above dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
27 July 2016.
Signed:
Helen-Claire O’Hanlon Chairperson
For and on behalf of the Tribunal

Lawrence v Martin

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0515-001175 / Case Ref No: 0315-17101
Appellant Landlord: Karen Lawrence
Respondent Tenant: Clinton Martin
Address of Rented Dwelling: 45 Hazelgrove Court, Killinarden, Tallaght , Dublin 24, D24YH74
Tribunal: Deirdre Bignell (Chairperson)
Peter Shanley, Andrew Nugent
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2,
Date & time of Hearing: 07 September 2015 at 10:30
Attendees: Karen Lawrence (Appellant Landlord)
Donnacha MacCarthaige (Witness for the Appellant Landlord)
Stuart Ring (Witness for the Appellant Landlord)

Patrick Martin (Father of and Witness for the Respondent Tenant)
Patrick O’Keeffe (assisting Patrick Martin)

In Attendance:
Gwen Malone Stenographers
1. Background:
On 4 March 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 9 April 2015. The Adjudicator determined that
1. The Applicant Tenant’s application regarding unlawful termination of tenancy in respect of the tenancy of the dwelling at 45 Hazelgrove Court, Killinarden, Tallaght, Dublin 24, is upheld.
2. The Respondent Landlord shall pay the Applicant Tenant the sum of €2,000, within 28 days of the date of issue of the Order, being damages in respect of an unlawful termination of the tenancy of the above dwelling.
3. The Applicant Tenant’s application regarding invalid notice of termination in respect of the tenancy of the dwelling at 45 Hazelgrove Court, Killinarden, Tallaght, Dublin 24, is not upheld.
Subsequently the Landlord appealed to the PRTB on 19 May 2015, which appeal was approved by the Board on 5 June 2015.
The PRTB constituted a Tenancy Tribunal and appointed Peter Shanley, Andrew Nugent and Deirdre Bignell as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Deirdre Bignell to be the chairperson of the Tribunal (“the Chairperson”).
On 1 July 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 7 September 2015 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:
By Appellant:
The Witness for the Appellant, Mr MacCarthaige, submitted into evidence a photo of a summons bearing the name of the Respondent.
By Respondent:
The Witness for the Respondent submitted into evidence a thread of text messages he had exchanged with the Appellant’s witness, Mr Ring. The Appellant agreed to the submission of the messages into evidence.
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify the capacity in which 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 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 possible; that the person who appealed (the Landlord in this case) would be invited to present her case first; that there would be an opportunity for cross-examination by the Respondent; that the Respondent would then be invited to present his case, and that there would be an opportunity for cross-examination by the Appellant. The Chairperson explained that following this, the parties would be given an opportunity to make a final submission.
The Chairperson said that she 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 stressed that all evidence would be taken on oath or affirmation and recorded by the official 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, or to the parties for a fee.
The Chairperson reminded the attending parties that it was an offence for anyone giving evidence to refuse to take the Oath or Affirmation, to refuse to produce any document in his or her control required by the Tribunal, to refuse to answer any question put by the Tribunal, or to knowingly provide false or misleading statements or information to the Tribunal. The Chairperson informed the parties that the above offences were punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson said that members of the Tribunal would ask questions from time to time to assist in clarifying the issues in dispute between the parties, and informed them that she would clarify any queries raised at the outset, or in the course of, the hearing. She also stated that she would consider an application made at any stage of the hearing seeking a short adjournment for the purpose of allowing the Parties to negotiate on a without prejudice basis, a settlement of the dispute.
The Chairperson also reminded the parties that as a result of the hearing, the Board would make a Determination Order which would be issued to the both parties to the dispute 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 and the hearing commenced.
5. Submissions of the Parties:
The Appellant Landlord’s case:
Evidence of Karen Lawrence (Appellant Landlord)
The Appellant submitted that a tenancy did not arise in the instant case as the Respondent was only ever a “potential tenant” of the Dwelling.
The Appellant stated that prior to the tenancy at issue, Mr Ring had occupied the Dwelling with a co-tenant. When the co-tenant vacated, the Appellant had agreed with Mr Ring that he could source a replacement tenant, and Mr Ring had advertised the room and met potential candidates.
According to the Appellant, Mr Ring never had authority to provide any assurances to potential tenants on her behalf, and it was understood that she or her partner, Mr MacCarthaige, were to meet Mr Ring’s preferred co-tenant prior to any tenancy being created. The Appellant said that while Mr Ring had permission to show the Dwelling to a potential tenant, he had no authority to enter into a tenancy agreement on her behalf.
The Appellant claimed that she only became aware on Monday 9 February that the Respondent had been permitted by Mr Ring to stay in the Dwelling the night before, and that a deposit had been paid over to Mr Ring.
Evidence of Donnacha MacCarthaige (Witness for the Appellant Landlord)
Mr MacCarthaige stated that upon hearing that Mr Ring had found a suitable replacement co-tenant in the Respondent, he attended the Dwelling on the night of Monday 9 February with a draft lease agreement and keys to the Dwelling, and found the Respondent intoxicated and incoherent. Mr MacCarthaige stated that he had asked the Respondent if he was in any state to sign a contract and that the Respondent had replied “no”.
Mr MacCarthaige stated that he did not wish to “throw him out” as it was clear that he was in a troubled state, and he indicated that he would call again to the Dwelling the following day.
The next day, Mr MacCarthaige received a call from Mr Ring who said that the Respondent had damaged his belongings and taken his food etc. Mr MacCarthaige stated that he contacted the Respondent’s father, Mr Martin,
Mr MacCarthaige stated that he arranged with Mr Martin to return the Respondent’s belongings on Wednesday 11 February and brought the belongings to Mr Martin’s house, but there was no answer. According to Mr MacCarthaige, he tried to contact Mr Martin again, but the phone rang out twice, and on the third attempt the number was unavailable. Mr MacCarthaige had begun unloading the belongings into Mr Martin’s garden, when a woman appeared from an attached residence to the side of the house and requested that the belongings be placed in the porch. Mr MacCarthaige finished unloading the belongings into the garden and departed.
According to Mr MacCarthaige, the Respondent’s UPC box, and two remote controls and certain clothing items are in a bag in the hallway of the Dwelling and are available for collection. Mr MacCarthaige denied that he saw an iPod while packing up the Respondent’s belongings.
Mr MacCarthaige further submitted that when packing up the Respondent’s belongings, he found drug paraphernalia, a summons naming the Respondent on charges of drug possession, and a number of small plastic bags containing residue which he alleged was indicative of drug use by the Respondent.
Mr MacCarthaige stated that he did not leave keys to the Dwelling or a draft tenancy agreement with the Respondent at any time.
Evidence of Stuart Ring (Witness for the Appellant Landlord)
Mr Ring stated that he had advertised the room to rent on daft.ie and that his phone number was on the advertisement.
Mr Ring initially stated that he had accepted a deposit of €200 from the Respondent on Friday 6 February and that he received the balance of the first month’s rent and deposit on Sunday 8 February, the day upon which the Respondent arrived with his belongings. Mr Ring subsequently submitted that he may have received the sum of €450 on the Friday and the balance of €400 on the Sunday.
According to Mr Ring, although he had wanted someone to move in on the Sunday (to offset rent payable by him), when he communicated with him on the Friday 6 February, the Respondent said he would not be moving in until after this date. Mr Ring stated that he did not recall arranging a meeting between Mr. Martin and the Appellant on Friday 8 February.
Mr Ring stated that Mr Martin had called him on Saturday 7 February saying that the Respondent had a black eye and was not “in a good way”. According to Mr Ring, after the Respondent arrived at the Dwelling between 4 and 5 o’clock on Sunday 8 February, the Respondent informed him that his father had beaten him with a brush, and was in a distressed state. The Respondent had become intoxicated that night.
Mr Ring stated that when Mr MacCarthaige arrived at 5 pm on Monday 9 February, Mr Ring had knocked on the door of the Respondent’s bedroom for fifteen minutes until the Respondent “fell out of the door”, and was unable to speak coherently. Mr MacCarthaige had told him who he was but the Respondent was in and out of consciousness. Mr MacCarthaige asked the Respondent if he “wanted to leave this until tomorrow” and left.
Mr Ring stated that he felt that the Respondent was a danger to himself and informed Mr MacCarthaige of what the Respondent had alleged against his father, and they decided to “give him another night”.
Mr Ring stated that on Tuesday 10 February, when he returned to the Dwelling at 3 p.m., he found someone who appeared to be under the influence of heroin at the front door of the Dwelling, which was wide open. Mr Ring entered the Dwelling and knocked on the Respondent’s bedroom door, and found the Respondent in a bad state. Mr Ring stated that he had called Mr MacCarthaige, and had received a call from Mr Martin who apologised on behalf of the Respondent, and said he would arrange with Mr MacCarthaige to collect his belongings. The Respondent then left the Dwelling and did not return.
Mr Ring stated that he had subsequently found small bags containing a substance in the Respondent’s room.
The Respondent Tenant’s Case:
Evidence of Patrick Martin (Witness for the Respondent Tenant)
Mr Martin gave evidence that he was with the Respondent when Stuart Ring first showed his son the room in the Dwelling available for rent. Mr Martin said that Mr Ring agreed to inform the Respondent in a couple of days of whether he could take the room, and that Mr Ring said that he was acting on behalf of the Appellant and was in charge of finding a co-tenant. On Thursday 5 February 2015, Mr Ring had called the Respondent and informed him that he could take the room, and that the Appellant would be there the following day. On Friday 6 February Mr Martin had arranged to pay the deposit on behalf of the Respondent, who paid the first month’s rent on Sunday 8 February 2015.
At the request of the Tribunal, Mr Martin submitted an exchange of text messages between himself and Mr Ring, into evidence, which reads as follows:
Feb 6: “How are you Pat. As it stands at the moment it will have to stay at 40. Karen will require a deposit of €450 anyway and she was asking me if I could arrange a time for the 2 of you to sit down for a chat and discuss contract what not so if you could pick a time I will tell her to be here then. “
Feb 6: “hi Stuart Clinton is away at a friends party this weekend I’ll call you when he is back and we’ll sort things out then, Pat”
Feb 6: “Lucky him not to worry would you have a rough time so that I could tell Karen to be here?”
Mr Martin stated that he knew that there was a lease to be signed and that he intended upon receiving a copy of the lease, to review it and return it signed. According to Mr Martin, the Appellant knew that the Respondent was moving in on Sunday 8 February and anticipated signing contracts on Tuesday 10 February backdating the tenancy to 8 February. Mr Martin did not recall calling Mr Ring on Saturday 7 February and was not aware of his son having been assaulted as he himself was away from home.
Mr Martin stated that he had locked up his own home prior to going away and that although his daughter had a set of keys to his house, his son did not. Mr Martin said that he had never witnessed any signs of drug use by the Respondent.
According to Mr Martin, although the Appellant was to deliver “contracts and keys” on Tuesday 10 February 2015, she sent Mr MacCarthaige to the Dwelling instead. Upon seeing the Respondent, Mr MacCarthaige allegedly told him to leave, and when the Respondent left the Dwelling later that day, upon his return he discovered that he had been locked out, and was unable to access either the Dwelling, or his belongings inside. When the Respondent tried to contact Mr Ring, Mr Ring’s phone rang out.
Mr Martin said that his wife had telephoned Mr MacCarthaige, who allegedly accused the Respondent of drug-taking. Although Mr Martin spoke with Mr MacCarthaige later, who agreed to meet him at 4 p.m. to allow him to collect the Respondent’s belongings, when he contacted Mr MacCarthaige at 4 p.m., Mr MacCarthaige said he was unable to make it but would deliver the Respondent’s belongings to him at 8 p.m. At 6:30 p.m., Mr MacCarthaige telephoned Mr Martin and informed him that he was leaving the belongings in the front garden of Mr Martin’s daughter’s home. Although Mr MacCarthaige was requested to place the belongings in the porch as it was about to rain, he refused. When Mr Martin arrived home at 8 p.m., he discovered that water had seeped into the back of the Respondent’s television and that cats had urinated on his bedding and clothing to the point that they had to be discarded. A UPC box, a remote control and an iPod were missing from the items.
Mr Martin stated that the full amount of monies paid had been returned and no written lease agreement was signed.
The Respondent is seeking damages of €500 in respect of his clothing and bedding, €500 in respect of the television and UPC box, and additional damages in respect of his illegal eviction.
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 Respondent moved himself and his belongings into the Dwelling on 8 February 2015.
• A deposit of €450 and the first month’s rent of €400 were paid on or around 6 February 2015. Both sums were returned to the Respondent, and are not in dispute.
7. Findings and Reasons:
Having considered all the evidence, the Tribunal’s findings and reasons therefor are set out hereunder:
Finding:
The Tribunal does not have jurisdiction to deal with the dispute.
Reason:
The 2004 Act applies to every dwelling the subject of a residential tenancy, but has no application in circumstances where two parties merely agree that they will enter into a tenancy agreement. Specifically, section 4(1) of the Act states that a ““contract of tenancy” does not include an agreement to create a tenancy”. An actual tenancy must be, or have been in existence for a matter to come within the jurisdiction of the 2004 Act, and for it to be capable of determination under the dispute resolution procedures set out thereunder.
It is clear from the evidence submitted, particularly the text messages exchanged between Mr Ring and Mr Martin, that although steps were taken by both parties, acting on behalf of the Appellant and the Respondent respectively, with a view to creating a tenancy, that such creation was subject to a condition precedent being fulfilled. The condition precedent was that the Appellant, or Mr MacCarthaige acting on behalf of the Appellant, and the Respondent, would meet, sign a tenancy agreement, and that keys would be handed to the Respondent. Due to the way in which matters transpired, this condition precedent was not satisfied and what was, in effect, an agreement to create a tenancy, did not become a contract of tenancy. The arrangement between the parties was no more than an agreement to enter into a tenancy.
As such, at no stage could the Respondent be said to have fallen under the definition of tenant of the Dwelling, as at no stage prior to his belongings being removed, could he be said to have been entitled to occupation of the Dwelling under a tenancy.
Pursuant to sections 84(1)b) and 85(1) of the Act, if a tribunal is of the opinion, that the dispute at issue does not come within the Board’s jurisdiction, it shall not deal any further with the dispute.
8. Determination:
Tribunal Reference TR0515-001175
In the matter of Karen Lawrence (Landlord) and Clinton Martin (Tenant) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
The PRTB has no jurisdiction in respect of the Respondent Tenant’s application in respect of the tenancy of the dwelling at 45 Hazelgrove Court, Killinarden, Tallaght, Dublin 24.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 7 September 2015.
Signed:

Deirdre Bignell Chairperson
For and on behalf of the Tribunal.

McKeone v Branigan

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001582 / Case Ref No: 1115-22628
Appellant Tenant: Damian McKeone
Respondent Landlord: Dominic Branigan
Address of Rented Dwelling: Flat 2, 71 Cabra Road, Phibsboro , Dublin 7,
Tribunal: Gene Feighery (Chairperson)
Mervyn Hickey, Kevin Baneham
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 18 March 2016 at 10:30
Attendees: Damian McKeone (Appellant Tenant)
Dominic Branigan (Respondent Landlord)
In Attendance: DTI Wordwave
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 notice of termination served by the Respondent Landlord on the Applicant
Tenant on 5 November 2015 is invalid.
2. The tenancy of the Rented Dwelling is a Part IV tenancy that commenced on 1
January 2013 and no fixed term letting is in place between the parties.
Subsequently on 1 February 2016 the Tenant applied to appeal against the Adjudicator’s
determination and was approved by the Board of the PRTB on 2 February 2016. The
grounds of the appeal were Other.
The PRTB constituted a Tenancy Tribunal and appointed Gene Feighery, Mervyn Hickey
and Kevin Baneham as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Gene Feighery 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 18 March 2016 the Tribunal convened a hearing at 10:30 in the Tribunal Room,
PRTB, Floor 2, 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:
• Tenancy Agreement dated 8 July 2010 between Landlord and Tenant of single
occupancy dwelling at Flat No. 4, 71 Cabra Road, Phibsorough, Dublin 7 with a rental
sum of €550 per month.
• Internet Advertisement for sale of 11 Residential Unit Dwelling located at 71-73
Cabra Road, Phibsborough, Dublin which guide price of €990,000.
4. Procedure:
The Chairperson asked the Parties to identify themselves and to identify the capacity in
which they were attending the Tribunal. She asked the Parties to confirm that they had
received the relevant papers from the PRTB 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 referred the dispute to the Tribunal (the Tenant in this case) would be
invited to present his 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 his case, and that there would be an opportunity for cross-examination on behalf
of the Appellant Tenant. The Chairperson explained that following this, both parties
would be given an opportunity to make a final submission.
The Chairperson clarified that Tribunal was a fresh hearing of the case and while it had
regard to the Adjudicator’s report, it was not bound by it and the parties were required to
adduce their evidence afresh to the Tribunal. She further said that Tribunal hearings
were conducted in public, and that any member of the public who wished to attend the
hearing as an observer was entitled to do so.
The Chairperson stressed 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.
She told the attending parties that if at any stage during the hearing they wished to reach
a compromise within the proceedings, the Tribunal would withdraw to allow discussions to
take place. She said that any agreement reached between the parties could be adopted
by the Tribunal as a legally binding order.
Finally, the Chairperson 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 (pursuant to section 123(3) of the
Residential Tenancies Act, 2004, hereafter referred to as the Act).
The Parties intending to give evidence were then sworn in.
5. Submissions of the Parties:
Appellant Tenant’s Case:
Evicence of Damian McKeone
He said the dwelling is one of 11 units situated within adjoining properties. He stated that
initially he took up occupancy of the dwelling in 2013 when his intention was to remain
there for a few months at an agreed monthly rent of €300 or €350, he could not be
specific. He said that his situation changed and he decided to remain on in the dwelling
for a longer period when a higher monthly rent of €400 was negotiated between the
parties. He said he was aware that he had Part 4 security of tenure and that a positive
landlord tenant relationship existed between himself and the Landlord. The Landlord
collected his monthly rental payment from the dwelling at the beginning of each month
and there were no rent arrears.
He said that in early 2015 the Landlord contacted him telling him that he was required to
vacate the dwelling at short notice because it was the Landlord’s intention to carry out
renovations to his and other dwellings within the property. He said he was unaware of
the Landlord’s intention to sell the properties at that stage and renovations were carried
out on a number of units during which time a number of tenants vacated and gave up
possession of their dwellings.
He stated that he had indicated to the Landlord that he was potentially interested in
occupying one of the renovated dwellings within the property and he entered into
negotiations with him in that regard. Ultimately when negotiations failed, the Tenant
hoped to agree a quid pro quo arrangement with the Landlord whereby he remained in
his dwelling, which would be renovated but would be subject to the existing rent of €400.
The Tenant stated that in June/July 2015 the Landlord and himself discussed the
regularising of his tenancy through the signing a lease agreement. He said there was a
meeting of minds in this regard and he told the Landlord that he had a subsisting Part 4
tenancy and that any new lease could not leave him in a less favourable position. He
said that in August 2015 the Landlord indicated his intention to sell the property. He
asserted that the Landlord’s reason for wanting to regularise his affairs was to increase
the market value of the property with 12 month fixed term leases in place. He indicated
that a number of the renovated dwellings had been re-let subject to fixed term leases by
the Auctioneer acting on behalf of the Landlord. It was intended that the dwelling would
be auctioned before 15 September 2015.
He said that in September 2015 the Landlord texted him indicating that he was supplying
him with a new fixed term 12 month lease which he required to be signed and returned to
him. The lease would be collected by him, together with his monthly rental payment in
the usual manner. He said that on 2 September 2015 he received the lease document
dated 1 September 2015 pre-signed by the Landlord. The Tenant said that although,
prima facie the fixed term lease was between himself and the Landlord, ultimately it would
be between himself and the new purchaser of the dwelling. He said he felt exposed in
circumstances where he had no rent book, he had always paid his rent in cash and he
had absolutely no paperwork of any kind to prove that he had Part 4 security of tenure.
He further indicated that the lease contained no inventory.
He said that the new fixed term lease supplied by the Landlord contained a number of
clauses about which he had concerns because, in his opinion, they were either void,
unlawful or because they were non-applicable. The Tenant gave a detailed account of the
reasons for his assertions in this regard. He said he texted the Landlord’s mobile phone
indicating that whereas he did not dispute the fixed term nature of the tenancy
agreement, he would strike a line through clauses with which he had a problem and he
asked the Landlord was this ok. He said he left a message for the Landlord to contact him
but he received no response and he relied on this silence as acceptance of the
agreement. He said on 11 September 2015 he received a text from the Landlord
indicating that the auction of the property would take place on 14 September 2015 and
asking him to sign the lease. He said he forgot about the lease for a period of time and on
2 October 2015, as agreed, he left out the signed lease which included his alterations and
having deleted conditions contained therein for collection by the Landlord.
He said that when the property went on the market in September 2015, he believed that
negotiations between a potential purchaser and the Landord indicated that the purchaser
required vacant possession of the property and he asserted that this fact completely
altered the Landlord’s attutude and the situation vis-à-vis his fixed term lease.
On 4 November 2015 the Tenant said he had a text from the Landlord informing him that
Dublin City Council was inspecting the premises the following day. On 5 November 2015
he received a letter from the Landlord rejecting that the fixed term lease signed and
returned by him constituted the same lease agreement issued to him as it failed to include
the obligations of both landlord and tenant. He said he further received a notice of
termination of the same date citing a vacating date of 29 January 2016, which letter he
asserted is invalid as a fixed term tenancy was in place and because it failed to comply
with the provisions of 62 (f)(ii) and 62(g) of the Act.
The Tenant contended that he has a fixed term tenancy and that there was a meeting of
minds between the parties in relation to this contract. He indicated that this is borne out
in the fact that the lease contract contained the negotiated rent of €400 per month for a
fixed term 12 month period and that it was pre-signed by the Landlord on 1 September
2015 when he alleged the tenancy was also registered with the PRTB. He argued that
the meeting of minds only changed when the Landlord required vacant possession of the
dwelling and he drew the Tribunal’s attention to the fact that the Landlord did not
challenge the alterations to the lease until 5 November 2015 when he issued an invalid
notice of termination and a rejection of the signed lease.
Finally, the Tenant stated that he believes he has a 12 month fixed term lease in
circumstances where the Landlord accepts that the notice of termination issued by him is
invalid. He said that a notice of termination cannot be issued during the period of a fixed
term tenancy and that any of the clauses he crossed out in the standard lease are either
moot or contrary to the provisions of the Act. He said they can be severed from the
contract and that the rest of the tenancy still stands.
Respondent Landlord’s Case:
Evidence of Dominic Branigan:
The Respondent Landlord stated that in early 2013 the Tenant took up occupation of the
dwelling and it was his intention was to remain there for a short period. This period
extended into a periodic month to month tenancy and continues in existence. Having
sought clarification from the Tribunal on how long a tenant must remain in occupation of a
dwelling before a Part 4 tenancy exists under the Act, the Landlord fully accepted that the
Tenant had acquired Part 4 security of tenure.
He said that during 2015 he asked the Tenant to seek alternative accommodation
because the dwelling failed to comply with housing standards and regulations and that it
was his intention to renovate the dwelling bit-by-bit. He said the Tenant told him he could
not find alternative accommodation and he said he was happy to allow him to remain in
the dwelling until May 2015, when it was his intention to sell the renovated property.
He said that in June 2015 he recalled discussing a potential move into one of the
renovated dwellings within the property with the Tenant however he did not recall ever
having offered the dwelling to him. He stated that the rental payment sought for the
renovated dwelling would have been too high for the Tenant in any event. He cofirmed
that during that period he had a brief discussion with the tenant regarding letting him
remain in his current dwelling after it was renovated at the current rent of €400.
The Landlord stated that in August 2015 he decided to sell the property and it was his
intention to complete the sale with the property fully occupied. He said he had a good
relationship with all of his tenants and, if possible, he wanted to avoid them the
inconvenience of having to source alternative accommodation. He said his intention
when issuing his tenants with new fixed term leases was to secure their tenancy for
twelve months. He said that with the exception of the tenant, all the remaining occupants
of the property fully signed up and returned their standard issue lease which he
considered to be sensible and practical. He said he accepted that there may be a
number of impractical clauses contained in the standard lease, but he said that these had
never posed any difficulty in the past. He said he was not in a position to comment on
whether or not the challenged clauses in his standard lease would be legally enforceable.
He stated that in August 2015 he asked the Tenant to sign a lease to regularise his
tenancy. He said he pre-signed the lease dated 1 September 2015 and left it in the
dwelling for the Tenant to sign and return it to him. In or around 2 October 2015, when he
collected the rent and the signed lease from the dwelling he noticed that the Tenant had
crossed out a number of clauses contained in the standard lease. He said he was
unhappy with this alteration and he issued a letter dated 5 November 2015 to that effect
to the Tenant. He said he also issued the Tenant with a notice of termination on the
same date which he accepted is invalid and fails to comply with the provisions of the Act.
The Landlord accepted that for a period of approimately 4 weeks he failed to inform the
Tenant that he was unhappy with the altered lease contract, however he stated that he
was making enquiries and researching the consequences of such alterations during that
period. He also pointed out that it had taken the Tenant a month to return the signed
lease.
The Landlord confirmed that originally his Estate Agents had recommended that the
dwelling be sold fully occupied but that his current advice is that potential purchasers
require vacant possession.
6. Matters Agreed Between the Parties
The tenancy commenced in January 2013
The rent due is €400 per month.
No security deposit was paid.
The tenant remains in occupation of the dwelling.
There are no rent arrears.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the attending parties, the Tribunal’s findings and reasons are set out
hereunder:
Finding 1.
In a majority decision, the Tribunal finds that a fixed term 12 month tenancy exists
between the parties commencing on 1 September 2015 for a monthly rent of €400.
Reason:
In making this finding, the Tribunal, has examined the interchange between the parties
and established that a fixed term tenancy was the result of this interchange.
It is undisputed between the parties that initially there was a meeting of minds and the
Landlord’s original intention was to grant a fixed term tenancy of 12 months in order to
secure the Tenant’s tenancy post any sale of the property. A fixed term lease was issued
to the Tenant by the Landlord. The lease was in a standard format with terms relating to
the commencement date, the number of tenants, the 12 month fixed term and the
monthly rental sum of €400 inserted into the lease. The Landlord pre-signed the lease
and issued it to the Tenant for his signature and the tenancy was registered with the
PRTB. The Landlord stated that his position in relation to the sale of the property
changed when his Agent informed him that the only prospective buyer for the property
wanted vacant possession and that was why the notices of termination were
subsequently served by him.
The question then arises whether the void or inapplicable provisions included in the lease
can be severed from the fixed term lease agreement. The Tenant did not challenge the
fixed term aspect of the lease agreement, however he challenged clauses contained
within the standard form lease which he correctly asserts are void, unlawful or nonapplicable.
Clause 9 of the standard fixed term lease states: “That he (the Tenant) will maintain the
interior of the premises in good order, repair and condition and he will be responsible for
the repair or replacement of glass furniture, fixtures, fittings etc. and that he admits that all
glass, furniture, fixtures etc. are at present in good order and condition.”
While this clause may be a common provision, the Tribunal finds that it is unlawful in part
and inapplicable in another. It is unlawful because it provides the obligation to maintain as
falling on the Tenant when according to section 12(1)(b)(ii) it falls squarely on the
Landlord. The obligation at section 16(f) is for the tenant not to cause deterioration
beyond normal wear and tear. The specific repair and replacement obligations are also
unlawful as they too fall squarely on the Landlord. While the admission regarding the
condition of the dwelling is standard fare, the Tenant is correct when he states that where
there is no inventory, he cannot be held to such an admission.
Clause 13 of the standard fixed term lease states: “That upon non-payment of rent for
one week (7 days) after the due date the tenancy shall be deemed terminated and notice
to quit issued unless reasonable explanation is given”.
This clause is contrary to section 54 (1) of the Act wherein it states that no provision of
any lease, tenancy agreement, contract or other agreement, (whether entered into before,
on or after the relevant date) may operate to vary, modify or restrict in any way a
provision of this part. Therefore the tenancy agreement issued to the Tenant purports to
take away from his rights provided for in the Act and is therefore rendered void. The
Landlord cannot contract, out of the rights or obligations of the Act.
Clause 17 of the fixed term lease states: “that he (the Tenant) will at the expiration or
sooner determination of the tenancy peacably surrender and yield up onto the Landlord
possession of the premises together with the furniture and fittings in good order and
substantial repair and condition in all respects and in the rooms in which they are now
situated”.
The Tenant’s assertion that a notice of termination is required before the expiration of his
fixed term tenancy which runs concurrently with a Part 4 tenancy is correct and therefore
this clause is invalid.
Clause 20 of the standard fixed term lease states: “That one month prior to the
termination of the tenancy agreement the tenant will notify the Landlord/Agent of his
intention to vacate the premises.”
The Tenant’s assertion that in compliance with a 12 month fixed term lease he is required
to comply with Part 5 of the Act, in particular, section 66, Table 2 relating to notice
periods is correct and therefore the clause is invalid.
Clause 21 of the fixed term standard lease states: “The tenant is responsible for any
dealings with the authorities in regard to refuse, electricity, gas and TV licences where
applicable.”
The parties gave oral testimony that the Tenant and all other tenants within the property
have individual, private ‘pay as you use’ Electricity Suppy Board meters within their
dwellings. The Landlord is responsible for the utility bills which he collects from the
tenants’ contribution via the meters. The Landlord conceded that this clause was non
applicable to the Tenant.
Clause 22 of the standard fixed term lease states: “the Tenant is responsible for the
upkeep and maintenance of the front and/or back garden where applicable unless stated
otherwise.”
The Tenant stated that it has always been the responsibility of the Landlord to maintain
the gardens and the Landlord, in negotiating the fixed term tenancy, never indicated any
change in this arrangement. The Landlord conceded that this clause was non applicable
to the Tenant.
Clause 23 of the standard fixed term lease states: “the Tenant must register directly with
IrishWater once they take up residency”.
The Tenant stated that the dwelling does not have a Water Point Reference Number
“WPRN” number and that Tenants are not issued with separate bills so the Tenant is not
in a position to comply with this provision.
The foregoing clearly demonstrates that the clauses are either unlawful or non applicable
and therefore fail to take away the core of the agreement reached between the parties
and therefore there exists a fixed term tenancy enduring until 31 August 2016.
In making this finding the majority of the Tribunal refers to the case Butler Tool Company
Ltd v Ex-Cell-O Corporation (England) Ltd [1977] EWCA Civ 9 which assesses the status
of a contract following various exchanges between contracting parties. This is a key
decision from Lord Denning from which the following excerpts are drawn:
“The better way is to look at all the documents passing between the parties – and glean
from them – or from the conduct of the parties – whether they have reached agreement on
all material points – even though there may be differences between the forms and
conditions printed on the back of them.”
“The terms and conditions of both parties are to be construed together. If they can be
reconciled so as to give a harmonious result, all well and good. If differences are
irreconcilable – so that they are mutually contradictory – then the conflicting terms may
have to be scrapped and replaced by a reasonable implication.”
Appling the Butler Tool Company decision, a majority of the Tribunal finds that it can
sever the two aspects of the parties’ interchange and there are sufficient grounds to
determine that the fixed term lease agreement survived the subsequent disagreement.
Finding 2.
The Tribunal finds that the notice of termination issued by the Landlord on the Tenant
dated 5 November 2015 is invalid.
Reason:
The notice of termination failed to comply with section 62 of the Act, namely to inform the
tenant of his rights under Sections 62(f)(ii) wherein it states that when vacating and giving
up possession of the dwelling that the Tenant has the whole of the 24 hours of the
termination date to do so and 62 (g) which states that any issue as to the validity of the
notice or the right of the Landlord to serve it must be referred to the Board under Part 6
within 28 days from the date of receipt of the notice. of the Act.
Furthermore, Section 58(3) provides that a landlord can only terminate a fixed term
tenancy where the tenant has breached his obligations. Accordingly a Landlord cannot
rely on the provisions of Section 34 of the Act to terminate a tenancy during the fixed
term. The Landlord has not alleged that the Tenant is in breach of any of his obligations
under the Act.
8. Determination:
Tribunal Reference TR0216-001582
In the matter of Damian McKeone (Tenant) and Dominic Branigan (Landlord) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The notice of termination served by the Respondent Landlord on the Applicant Tenant
on 5 November 2015 is invalid.
The tenancy of the dwelling at Flat 2, 71 Cabra Road, Phibsboro, Dublin 7 is a twelve
month fixed term tenancy commencing on 1 September 2015.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 31 March 2016.
Signed:
Gene Feighery Chairperson
For and on behalf of the Tribunal.

Mulvey v McAuley

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0217-002214 / Case Ref No: 0117-31234
Appellant Landlord: John Mulvey
Respondent Tenant: Sam McAuley
Address of Rented Dwelling: 2 Avoca Avenue, Bray , Co Wicklow,
Tribunal: Roderick Maguire (Chairperson)
Hugh Markey, Ciara Doyle
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 30 March 2017 at 10:30
Attendees: John Mulvey, Tribunal Appellant, Landlord
Sam McAuley, Tribunal Respondent, Tenant,,
In Attendance: Wordwave/DTI recording technicians
1. Background:
On 04 January 2017 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 14 February 2017. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €2,000 to the Applicant Tenant
within 21 days of the date of issue of the Order, being damages for the unlawful
termination of the tenancy, in respect of the tenancy of the dwelling at 2 Avoca
Avenue, Bray, Co Wicklow.
Subsequently the following appeal was received from the Landlord on 28 February 2017.
The grounds of the appeal are Breach of fixed term lease, Other, Unlawful termination of
tenancy (Illegal eviction).
The RTB constituted a Tenancy Tribunal and appointed Hugh Markey, Roderick Maguire,
Ciara Doyle as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Roderick Maguire to be the chairperson of the Tribunal (“the Chairperson”).
On 03 March 2017 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 2017 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. RTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the Parties to identify themselves and to identify the capacity in
which they were attending the Tribunal. He asked the Parties to confirm that they had
received the relevant papers from the RTB and that they had received the RTB document
entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the party who
referred the dispute to the Tribunal, 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 his case, and that there would be an
opportunity for cross-examination by the Appellant. The Chairperson explained that the
Tribunal would ask questions of the Parties during their evidence.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded and he reminded the Parties that knowingly providing false or misleading
statements or information to the Tribunal is 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 (pursuant to section 123(3) of the
Residential Tenancies Act, 2004, hereafter referred to as the Act). The Parties intending
to give evidence were then sworn in.
5. Submissions of the Parties:
The Landlord submitted that he was at all times living in the dwelling and had been
spending some time with his girlfriend, but was still spending at least 3 nights a week in
his house at all times. He stated that he had his own bedroom, and that the bills were in
his name. He had offered the Tenant, when he first came to rent, his bedroom and to
move to another bedroom himself but the Tenant chose to take another bedroom in the
house.
He stated that it had always been clear that he was an owner/occupier and renting a
room. He stated that his girlfriend had put the advert up on the internet and may have hit
the wrong button which explained why it said that the dwelling was not owner/occupied.
He said that he had been shocked by the lengthy text from the Tenant complaining and
that when they met the Tenant said he wasn’t happy in the house so the landlord had
agreed he could leave. He said the Tenant had broken the washing machine so money
was deducted from his deposit. He said the Tenant had moved out of his own free will.
Submissions by the Respondent Tenant
The Tenant submitted that the room had been rented to him the week before 24 August
2016 on the basis that the Landlord was not living there. The Landlord had been staying
with his girlfriend but then came back to live in the house around beginning of December
2016. He said that there were issues from the beginning with the fridge and the oven, and
the toilet had been blocked twice and the condition had been particularly bad on 26
September 2016 The oven had not been fixed for a month.
He stated that the Landlord told him to be out at the end of December and that the
Landlord had been very agitated at the time, so the Tenant did not say anything. The
Tenant subsequently told him that he needed written notice, and the Landlord refused to
give it. On 24 December 2016 the Landlord was waiting in the kitchen and restated that
he was to be out by the end of the month and the Tenant found this very intimidating.
When he left, he had not been returned his full deposit as a handle had come off the
washing machine but this was normal wear and tear, and the Tenant was only given EUR
120 back from his deposit.
6. Matters Agreed Between the Parties
None.
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 finds that there is no tenancy under the Residential Tenancies
Act 2004 and therefore the Tribunal and the RTB does not have jurisdiction.
Reasons:
1. The Tribunal finds that the Landlord was living in the dwelling and remained living in
the dwelling after the Tenant moved in as he was clearly coming and going in the dwelling
from the dates and content of the text messages submitted and the evidence given by
both parties. The Tribunal finds that he kept his bedroom for his own exclusive use and
continued to have all utilities in his own name and was therefore living in the dwelling
through the entirety of the time that the Tenant was living there.
2. As such, the dwelling is not covered by the Act, pursuant to Section 3(2)(g) as it is a
“dwelling within which the Landlord also resides”.
3. In any event, the Tribunal also finds that there was no tenancy but rather a series of
licencees of particular rooms and that “rent” that was paid was paid on an individual basis
and not collectively for the property. The Respondent Tenant had no control over the
number or identity of the other parties in the house, which was controlled at the discretion
of the Appellant Landlord. The bedrooms were not self-contained residential units within
the meaning of section 4(1) of the Residential Tenancies Act 2004, but had shared
common areas for cooking, shared bathrooms and shared living space. All of these facts
indicate that the parties considered that there was a series of individual agreements with
each person living in the house that entitled them to their own bedroom but that they
would have communal space and as such they did not have an agreement for a dwelling
as defined in section 4 of the residential Tenancies Act 2004, not being “a self-contained
residential unit.” Therefore the 2004 Act is not applicable as Section 3 states that it only
applies to dwellings, and the property the subject matter of the dispute is not a dwelling.
8. Determination:
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
19 April 2017
Signed:
. Tribunal Reference
In the matter of
accordance with section 108(1) of the Residential Tenancies
that:
The Residential Tenancies Act does not apply to the property
Co
Wicklow
Wicklow,
2017.
the subject matter of the dispute and therefore the RTB has no jurisdiction.
Roderick Maguire
For and on behalf of the Tribunal.
John Mulvey
TR0217
TR0217-
-002214
(Landlord
Chairperson
Landlord) and
) Sam McAuley
at
(Tenant
2 Avoca Avenue
Act 2004, determines
Tenant) the Tribunal in
) Avenue,
, Bray
,
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0217-002214 / Case Ref No: 0117-31234
Appellant Landlord: John Mulvey
Respondent Tenant: Sam McAuley
Address of Rented Dwelling: 2 Avoca Avenue, Bray , Co Wicklow,
Tribunal: Roderick Maguire (Chairperson)
Hugh Markey, Ciara Doyle
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 30 March 2017 at 10:30
Attendees: John Mulvey, Tribunal Appellant, Landlord
Sam McAuley, Tribunal Respondent, Tenant,,
In Attendance: Wordwave/DTI recording technicians
1. Background:
On 04 January 2017 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 14 February 2017. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €2,000 to the Applicant Tenant
within 21 days of the date of issue of the Order, being damages for the unlawful
termination of the tenancy, in respect of the tenancy of the dwelling at 2 Avoca
Avenue, Bray, Co Wicklow.
Subsequently the following appeal was received from the Landlord on 28 February 2017.
The grounds of the appeal are Breach of fixed term lease, Other, Unlawful termination of
tenancy (Illegal eviction).
The RTB constituted a Tenancy Tribunal and appointed Hugh Markey, Roderick Maguire,
Ciara Doyle as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Roderick Maguire to be the chairperson of the Tribunal (“the Chairperson”).
On 03 March 2017 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 2017 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. RTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the Parties to identify themselves and to identify the capacity in
which they were attending the Tribunal. He asked the Parties to confirm that they had
received the relevant papers from the RTB and that they had received the RTB document
entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the party who
referred the dispute to the Tribunal, 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 his case, and that there would be an
opportunity for cross-examination by the Appellant. The Chairperson explained that the
Tribunal would ask questions of the Parties during their evidence.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded and he reminded the Parties that knowingly providing false or misleading
statements or information to the Tribunal is 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 (pursuant to section 123(3) of the
Residential Tenancies Act, 2004, hereafter referred to as the Act). The Parties intending
to give evidence were then sworn in.
5. Submissions of the Parties:
The Landlord submitted that he was at all times living in the dwelling and had been
spending some time with his girlfriend, but was still spending at least 3 nights a week in
his house at all times. He stated that he had his own bedroom, and that the bills were in
his name. He had offered the Tenant, when he first came to rent, his bedroom and to
move to another bedroom himself but the Tenant chose to take another bedroom in the
house.
He stated that it had always been clear that he was an owner/occupier and renting a
room. He stated that his girlfriend had put the advert up on the internet and may have hit
the wrong button which explained why it said that the dwelling was not owner/occupied.
He said that he had been shocked by the lengthy text from the Tenant complaining and
that when they met the Tenant said he wasn’t happy in the house so the landlord had
agreed he could leave. He said the Tenant had broken the washing machine so money
was deducted from his deposit. He said the Tenant had moved out of his own free will.
Submissions by the Respondent Tenant
The Tenant submitted that the room had been rented to him the week before 24 August
2016 on the basis that the Landlord was not living there. The Landlord had been staying
with his girlfriend but then came back to live in the house around beginning of December
2016. He said that there were issues from the beginning with the fridge and the oven, and
the toilet had been blocked twice and the condition had been particularly bad on 26
September 2016 The oven had not been fixed for a month.
He stated that the Landlord told him to be out at the end of December and that the
Landlord had been very agitated at the time, so the Tenant did not say anything. The
Tenant subsequently told him that he needed written notice, and the Landlord refused to
give it. On 24 December 2016 the Landlord was waiting in the kitchen and restated that
he was to be out by the end of the month and the Tenant found this very intimidating.
When he left, he had not been returned his full deposit as a handle had come off the
washing machine but this was normal wear and tear, and the Tenant was only given EUR
120 back from his deposit.
6. Matters Agreed Between the Parties
None.
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 finds that there is no tenancy under the Residential Tenancies
Act 2004 and therefore the Tribunal and the RTB does not have jurisdiction.
Reasons:
1. The Tribunal finds that the Landlord was living in the dwelling and remained living in
the dwelling after the Tenant moved in as he was clearly coming and going in the dwelling
from the dates and content of the text messages submitted and the evidence given by
both parties. The Tribunal finds that he kept his bedroom for his own exclusive use and
continued to have all utilities in his own name and was therefore living in the dwelling
through the entirety of the time that the Tenant was living there.
2. As such, the dwelling is not covered by the Act, pursuant to Section 3(2)(g) as it is a
“dwelling within which the Landlord also resides”.
3. In any event, the Tribunal also finds that there was no tenancy but rather a series of
licencees of particular rooms and that “rent” that was paid was paid on an individual basis
and not collectively for the property. The Respondent Tenant had no control over the
number or identity of the other parties in the house, which was controlled at the discretion
of the Appellant Landlord. The bedrooms were not self-contained residential units within
the meaning of section 4(1) of the Residential Tenancies Act 2004, but had shared
common areas for cooking, shared bathrooms and shared living space. All of these facts
indicate that the parties considered that there was a series of individual agreements with
each person living in the house that entitled them to their own bedroom but that they
would have communal space and as such they did not have an agreement for a dwelling
as defined in section 4 of the residential Tenancies Act 2004, not being “a self-contained
residential unit.” Therefore the 2004 Act is not applicable as Section 3 states that it only
applies to dwellings, and the property the subject matter of the dispute is not a dwelling.
8. Determination:
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
19 April 2017
Signed:
. Tribunal Reference
In the matter of
accordance with section 108(1) of the Residential Tenancies
that:
The Residential Tenancies Act does not apply to the property
Co
Wicklow
Wicklow,
2017.
the subject matter of the dispute and therefore the RTB has no jurisdiction.
Roderick Maguire
For and on behalf of the Tribunal.
John Mulvey
TR0217
TR0217-
-002214
(Landlord
Chairperson
Landlord) and
) Sam McAuley
at
(Tenant
2 Avoca Avenue
Act 2004, determines
Tenant) the Tribunal in
) Avenue,
, Bray
,Private Residential Tenancies Board

 

Stankiewicz v Darcy

 

RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0515-001156 / Case Ref No: 0315-17192
Appellant Tenant: Przemyslaw Stankiewicz
Respondent Landlord: Angella Darcy
Address of Rented Dwelling: 1A Westway Close, Blanchardstown , Dublin 15, D15RH79
Tribunal: John Tiernan (Chairperson)
Finian Matthews, Orla Coyne
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 27 July 2015 at 2:30
Attendees:
Przemyslaw Stankiewicz, Tribunal Appellant, Tenant;
Malgorzata Grudzien, (Interpreter/Advocate).
In Attendance:
Gwen Malone Stenographers
1. Background:
On 10/03/2015 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 a Mediation which took place on 10/03/2015. The Mediator reported on the matter of Przemyslaw Stankiewicz (Applicant Tenant) and Angella Darcy (Respondent Landlord) the Mediator, in accordance with section 95 of the Act, reports that:
No matters have been agreed to by the parties which resolve in whole or in part the dispute in respect of the tenancy of the dwelling at 1A Westway Close, Blanchardstown, Dublin 15.
Subsequently the following referral to Tribunal was received: Tenant: Approved by on the Board on 22/05/2015.
The PRTB constituted a Tenancy Tribunal and appointed Finian Matthews, John Tiernan, Orla Coyne as Tribunal members pursuant to Section 102 and 103 of the Act and appointed John Tiernan to be the chairperson of the Tribunal (“the Chairperson”).
On 18/06/2015 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 27/07/2015 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 Party in attendance to identify himself and to identify the capacity in which he was attending the Tribunal. He asked the Party in attendance to confirm that he had received the relevant papers from the PRTB and that he 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 party who requested to refer the Dispute to the Tribunal, the Appellant would be invited to present his case first; and that if there is an appearance on behalf of the Respondent 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 the Tribunal members would ask questions from the Party in attendance to amongst other things clarify evidence or to elicit information on relevant aspects of the case. The Chairperson explained that following this, the Party in attendance 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 Party in attendance that knowingly providing false or misleading statements or information to the Tribunal is an offence punishable by a fine of up to €4,000 and/or up to 6 months imprisonment.
The Chairperson also reminded the Party in attendance 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 (pursuant to section 123(3) of the Residential Tenancies Act, 2004, hereafter referred to as the Act).
The Chairperson also informed the party in attendance that in event of an appearance on the part of the Respondent if it seemed that they might be able to resolve their dispute by agreement, the Tribunal would facilitate any such negotiations.
The Party in attendance was then sworn in.
The Interpreter was also sworn.
5. Submissions of the Parties:
Jurisdiction:
The Respondent Landlord had submitted in writing that the Tribunal did not have jurisdiction to hear the case on the grounds that the Appellant Tenant was a Licensee rather than a tenant, that he did not rent the entire dwelling and did not have a joint tenancy with other co-tenants. She submitted that each bedroom was rented individually
and that the occupants were selected by herself. She submitted that the property has always been her primary residence. She further submitted that recently due to ill health it had become necessary to receive treatment and aftercare from a relative which necessitated absences from the property. She said that she also keeps a room available on the property for her own use for accommodation/office purposes.
She cited text taken from the PRTB web-site wherein it is stated that exemption from the jurisdiction of the Act may apply in respect of: ‘Persons occupying accommodation in which the owner is not resident under a formal licence arrangement with the owner where the occupants are not entitled to its exclusive use and the owner has continuing access to the accommodation and/or can move around or change the occupants.’
The Respondent Landlord also submitted that all accommodation agreements in the dwelling are for a period of 12 months and that some of the occupants are there for many years.
Evidence of the Appellant Tenant
The Appellant Tenant described the dwelling as being a 2 storey 3 bedroomed house with a shared kitchen/dining area and shared utility area as well and a shed that was shared with an adjacent house. He said that his room which was an adapted living room had an en-suite shower and toilet, a double bed, 2 bedside lockers, a table at which he occasionally ate, a coffee table, a sofa, 2 armchairs and a built in wardrobe.
Evidence was adduced that the agreement signed with the Respondent Landlord’s Agent included a monthly rent of €430 and provisional contribution of €80 towards utilities including gas, electricity, cable TV, TV licence, broadband and bin charges which sum would be adjusted when actual usage was reckoned. Under the agreement the Appellant Tenant was also required to pay a deposit of €510.
He said that he had agreed to rent the accommodation on the basis that he would be in a position to be visited by his 7 year old daughter, where she would be safe and had advised the Respondent Landlord’s Agent of this who had agreed the arrangement. The Appellant Tenant said that it was intended that she would visit him on 2 nights each month. He said that he paid his rent on 23rd November 2014. He gave evidence that the rent for due in late December 2014 in respect of January was not paid due to other direct debit payments and when he was contacted on the matter by the Respondent Landlord he promised to pay by the end of that week
The Respondent Landlord in the written submissions on her behalf alleged that the Appellant Tenant had failed in his obligations in respect of his conditions of occupancy in the dwelling. The Tribunal probed and questioned the Appellant Tenant in regard to each of these matters. These matters comprised:
1) That he had not paid the rent that was due on 23rd January 2015.
He responded that the problem had originally arisen in regard to the payment of the rent that was due on 23rd December 2014. He said that when he had been advised by the Agent of the Respondent Landlord in the 2nd week of January 2015 that this payment had not been made he initially thought that the Agent was wrong but later on checking his account agreed with him. He said that due to direct debits on his bank account and other Christmas related expenses the payment had not been made. He said that he had promised the Agent that he would have the money within a week and sought consent to pay it in two tranches. He said that the December 2014 rental payment was paid on 23rd
January 2015. He said that in the meantime the Agent presented himself and the other residents with a huge bill of €796.92 for internet services and other services with which he did not agree.
2) That despite the conditions of his occupation of the room he had brought his young daughter to the dwelling which was inappropriate in a dwelling in which young males also resided.
He responded that this had been agreed verbally with the Agent of the Respondent Landlord and that when his daughter was there she remained in his room.
3) That he had removed the television from the communal area and placed it in his room. The Appellant Tenant stated that on the occasion of his daughter’s visit he had agreed with the other residents in the dwelling that the television could be placed in his room for the 2 days of her visit. He said that the Agent of the Respondent Landlord had observed this and had no objection.
4) That he had displayed anti-social behaviour towards other residents in the dwelling.
He denied any intimation that he had engaged in anti-social behaviour and said that there was no evidence of this.
5) That he had removed property that did not belong to him from the dwelling on departure.
He denied that he had removed any items that were not his own from the dwelling on being evicted. He said that the only items over which there could be confusion was in relation to two bedside lockers that had been removed from the dwelling by the Agent and that may have been inadvertently taken by the persons assisting him.
6) That not only is the Appellant Tenant in rent arrears but that he also owes €116.65 in respect of unpaid utility bills.
He said that he disagrees that he is liable for this amount.
The Appellant Tenant said that on 23rd January 2015 the Agent told him that the Respondent Landlord did not want hassle and that he would have to leave. He said that he told the Agent that he would require a month to secure new accommodation. He said that he subsequently found new accommodation which was to commence on 23rd February 2015.
The Appellant Tenant said that on 16th February 2015 he was away in Sligo. He said that he was alerted by text that the locks to the dwelling had been changed. He said that his girlfriend had spoken with the Respondent Landlord and that he told her that he was to collect his belongings by Friday 20th February 2015 and that if he didn’t do so they would be left on the street. He said that following some further contact it was agreed that his items would be collected on 18th February 2015. He said that when he arrived the Agent had just completed moving his things and that all his belongings were left outside the dwelling in the front yard in big bags. He said that important documents of his were destroyed in the operation due to a left-over cup of coffee being thrown into one of the bags. He said that his dining table was also destroyed.
The Appellant Tenant submitted that following the eviction items to the value of €1,024 were missing and that this included 6 jig-saws, an outfit for his daughter, a sewing machine, an artificial Christmas tree, a bathroom rug, various lights and a quantity of food. He did not submit any independent verification of such items.
He said that the Respondent Landlord had retained his deposit and had told him that even if he had been up to date with his rent he would not have returned the deposit due to the condition of his room following the termination of the tenancy and outstanding utility amounts.
The Appellant Tenant said that subsequent to being locked out of the dwelling he slept in his car for 3 nights and had claimed he had contracted pneumonia. He said that he is a lorry driver and during that period that he went to work from his car. He clarified that he gained access to his new dwelling on 20th February 2015 some days earlier than had previously been arranged.
The Appellant Tenant was questioned by the Tribunal whether he had had a row with and was abusive towards the Agent of the Respondent Landlord on 23rd January 2015 in regard to the late payment of his rent that had been due on 23rd December 2014 together with his daughter staying at the dwelling. He agreed that there had been an argument but denied that he had been abusive.
The Appellant Tenant was asked by the Tribunal arising from the submission of the Respondent Landlord whether following his failure to vacate the dwelling that on the 8th February 2015 in the course of a telephone conversation with the Agent he had been given some extra time until 13th February 2015 to vacate and whether he had agreed to this. He said that he had not agreed to this.
6. Matters Agreed Between the Parties
None
7. Findings and Reasons:
Findings and Reasons:
Finding No.1
The Tribunal finds that the Residential Tenancies Act 2004 applies to the tenancy of the dwelling and that the Tribunal therefore has jurisdiction to determine the dispute between the parties herein.
Reason 1:
The Tribunal refers to s.3(1) of the Act which states that the Act applies to every dwelling, the subject of a tenancy unless expressly excluded. The Tribunal has considered the categories of exclusion that have been set out in s.3(2) of the Act and is satisfied that none such apply in this case and that the form of tenancy both as described in the written submissions on the part of the Respondent Landlord and by the Appellant Tenant is not so excluded.
Reason 2:
The Tribunal considers that whereas even in the circumstances that as in the instant case each tenant was recruited individually by the Respondent Landlord thus giving rise to a set of individual agreements with the Respondent Landlord and that the various tenancies commenced at varying points in time these factors do not in themselves collectively or individually preclude such tenancies in the dwelling from the jurisdiction of the Act. The Tribunal considers that there is no requirement within the Act of 2004 that requires
tenants to have a relationship amongst themselves and also notes that at s.48 and s.49 of the Act it contemplates multiple tenants with tenancies of differing periods of duration. Furthermore the Tribunal considers that where each tenant has his/her individual room assigned at the time of coming in to being of each such individual tenancy he/she also has been assigned the use of the common areas in the dwelling and that collectively the body of tenants share a control of the common areas which when considered along with the individual room assignments yields in effect a control in common over the entire dwelling. The Tribunal considers that the fact that each tenant in a dwelling could lock the door to his/her bedroom but shares the common areas makes no material difference to that control in common and therefore does not preclude the application of the Act to the tenancy.
Reason 3:
The Tribunal probed and cross examined the Appellant Tenant in regard to the layout of the dwelling in detail at the Tribunal Hearing and is satisfied on the balance of probabilities that the written submission on the part of the Respondent Landlord wherein it is asserted that ‘I also keep a room at the property for my own use for accommodation/office purposes.’ is not factual in respect of the dwelling at 1A Westway Close, Corduff, Blanchardstown, Dublin 15. The Appellant Tenant denied that the Respondent Landlord had reserved any part of the dwelling as she had submitted to the Tribunal for accommodation/office purposes and to which the occupants were not entitled to its exclusive use either individually or collectively. The Tenant further stated that he had challenged the Respondent Landlord’s Agent in regard his access to the common area’s of the dwelling.
Reason 4:
The Tribunal has also had regard to the written lease agreement signed between the parties on 23rd October 2014 and notes that it does not provide for access on the part of the Respondent Landlord and notes where at Clause 7 it is stipulated that: ‘You are obliged to take care of your room and the common areas. It is every tenant’s obligation to keep the communal areas of the house clean and tidy, ie living room, kitchen, hallways and stairs.’ The Tribunal notes that it is the responsibility of the tenants in common to keep the communal areas clean and tidy thus demonstrating such control in common to be in place.
Reason 5:
The Tribunal refers to s.4(1) of the Act wherein a definition of a ‘self-contained residential unit’ as cited in the definition of the word ‘dwelling’ at s.3 of the Act includes the form of accommodation commonly known as ‘bedsit’ accommodation which accommodation usually took the form of an exclusive bedroom and cooking facilities along with shared bathroom stairways and hallways to which shared areas the landlord had a general right of access. Even accepting the position as submitted by the Respondent Landlord that she and/or her Agent had the right to access the common areas, which position had not been accepted by the Appellant Tenant, the Tribunal considers that the description on the part of the Respondent Landlord of the form of accommodation in the subject dwelling in her submissions to the Tribunal being comprised of both exclusive and shared areas the latter of which provided for access by the landlord reflects no material difference to that of the traditional ‘bedsit’ type accommodation which is stated to be within the jurisdiction of the Act of 2004 and therefore even in those circumstances the tenancy of the dwelling
falls within the jurisdiction of the Act of 2004. On the basis of the above the Tribunal considers that, as it has been constituted under the provisions of the Act, it has jurisdiction to determine the case.
Reason 6:
The Tribunal has considered the submission on the part of the Respondent Landlord citing an extract from the content of the PRTB website in the form of a guidance note to explain the differences between ‘a tenant’ and ‘a licensee’ wherein it is advised that licensees include: ‘Persons occupying accommodation in which the owner is not resident under a formal licence arrangement with the owner where the occupants are not entitled to its exclusive use and the owner has continuing access to the accommodation and/or can move around or change the occupants.’ The Respondent Landlord has submitted that the occupant of the dwelling the subject of the instant dispute falls in to this category and that therefore the Tribunal does not have jurisdiction.
The Tribunal notes that the stated purpose of the leaflet/Guidance Note is to help outline for landlords and tenants and other occupants of rental accommodation the distinction between tenants and licensees. It states that it is a general guide only and not an interpretation of the law and that it does not necessarily make reference to all relevant provisions.
The Tribunal notes that it is further stated therein that its aim is to deal with another form of licensee being a person resident in a dwelling at the invitation of a bona fide tenant.
The Tribunal considers that it is not sufficient to rely upon the text of the Guidance Note alone and that it must be viewed in the context of the provisions of the Act itself and the particular circumstances of each case. The Tribunal further notes that it has been denied by the Appellant Tenant that the Respondent Landlord had reserved any part of the dwelling as she had submitted to the Tribunal for accommodation/office purposes and to which the occupants were not entitled to its exclusive use either individually or collectively. It is also noted that the relevant agreement did not include a provision that the Respondent Landlord had the right to ‘move around or change the occupants’. The submissions on the part of the Respondent Landlord include reference to the practice whereby the Agent on her behalf accessed the common areas but the Tribunal also notes and accepts that this access was challenged by the Appellant Tenant and not accepted as part of the accommodation agreement. It is also noted that no such access provision was cited in the agreement signed between the parties.
Reason 7:
The Respondent Landlord has further submitted that whereas the signed agreement refers to itself at Clause No 1 as a ‘lease’ and uses the term ‘tenant’ in respect of the occupants throughout its text the use of these terms should not be used to defeat her case on the same grounds as stated in the PRTB web-site that the Courts or PRTB would not accept the reference to an agreement as being a ‘licence’ and not a ‘lease’ or a ‘tenancy agreement’ merely on the use of such words on the document. The Tribunal can accept this argument in principle but any such acceptance is subject to the principles of contra proferentem whereby the Respondent Landlord on her own submission was the party who drew up the agreement and presented it to the Appellant Tenant and that in
such circumstances the benefit of any consequential doubt or ambiguity in interpretation of any specific term of that agreement should fall to the Appellant Tenant.
Finding No.2:
The Tribunal finds that the termination of the tenancy of the dwelling at 1A Westway Close, Corduff, Blanchardstown, Dublin 15 was unlawful and awards the sum of €2,500 to be paid by the Respondent Landlord to the Appellant Tenant in damages for the consequences of the illegal eviction.
Reason(s):
The Tribunal accepts the evidence of the Appellant Tenant in regard to the matters that occurred on the occasion of his exclusion from the dwelling which were not contested at the Tribunal hearing. The Tribunal also notes that in the submissions of the Respondent Landlord the manner of the then alleged unlawful termination of the tenancy was not rebutted. The Tribunal considers that the tenancy was not terminated in accordance with the provisions of s.58 of the Act and that the changing of the locks and the removal of the Appellant Tenant’s possessions from the dwelling amounted to an unlawful termination or illegal eviction.
The award of damages in the sum of €2,500 is made having regard to the distress and inconvenience suffered by the Appellant Tenant and takes account of any other losses including any loss of possessions.
Finding No.3:
The Tribunal finds that the Respondent Landlord has justifiably retained the sum of €339.36 from the Appellant Tenant’s security deposit of €510 in respect of rent arrears in respect of the tenancy.
Reasons: The Tribunal accepts that the Appellant Tenant was in rent arrears at the time of termination of the tenancy on 16th February 2015 for a period of 24 days from 23rd January 2015 to 15th February 2015 inclusive being the last full day before the locks were changed and the Appellant Tenant’s possessions were removed from the dwelling. The Tribunal has taken account of the Appellant Tenant’s own evidence in this regard where he stated that the rent due in respect of the period from 23rd January to 22nd February was not paid and has calculated the sum outstanding in rent arrears to be €339.36
This sum is calculated as follows:
The monthly rent was €430
This sum is multiplied by 12 to yield an annual rate of rent = €430 X 12 = €5,160
The Annual is divided by 365 to yield a daily rate of rent = €5,160 ÷ 365 = €14.14 per day
The rent for 24 days is calculated by multiplying the daily rate by 24 = €14.14 X 24 = €339.36
Under the provisions of s.12(4) of the Act the landlord is only obliged to refund that part of a tenant’s deposit where there is a default in the payment of rent the difference between the amount of rent that is in arrears and the amount of the deposit.
Finding No.4
The Tribunal finds that the Appellant Tenant is in arrears in respect of payment for utility usage in respect of the tenancy in the sum of €116.65. The Tribunal finds that this sum is due and owing by the Appellant Tenant to the Respondent Landlord.
Reason(s):
The Tribunal accepts the submission of the Respondent Landlord that the Appellant Tenant owes a sum of €116.65 in arrears of utility bills in respect of the tenancy of the dwelling. The Tribunal noted that the Appellant Tenant did not deny the existence of some amount of arrears in regard to utilities and did not accept the assertions of the Appellant Tenant that the account was erroneous particularly in the absence of any submission of an alternative account in respect of the sum outstanding. The Respondent Landlord is accordingly also entitled to deduction this amount from the Appellant Tenant’s deposit.
8. Determination:
Tribunal Reference TR0515-001156
In the matter of Przemyslaw Stankiewicz (Tenant) and Angella Darcy (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1) The Tribunal has jurisdiction to determine the dispute between the Parties in respect of the tenancy of the dwelling at 1A Westway Close, Corduff, Blanchardstown, Dublin 15.
2) The Termination of the tenancy at 1A Westway Close, Corduff, Blanchardstown, Dublin 15 that took place on 16th February 2015 was unlawful.
3) The Respondent Landlord shall pay the total sum of €2,553.99 to the Appellant Tenant within 28 days of the date of issue of this Order being damages of €2,500 in respect of the consequences of the unlawful termination of the tenancy and €53.99 being the unjustifiably retained portion of the Appellant Tenant’s security deposit having deducted €339.36 in rent arrears and €116.65 in respect of an outstanding utility account in respect of the tenancy of the dwelling at 1A Westway Close, Corduff, Blanchardstown, Dublin 15.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 26/08/2015.
Signed:
John Tiernan Chairperson
For and on behalf of the Tribunal.

 

Fennell & Anor -v- N17 Electrics Ltd

[2012] IEHC 228 (11 May 2012)
n: 2012 IEHC 228

High Court Record Number: 2011 21COS

Date of Delivery: 11/05/2012

Court: High Court

Composition of Court:

Judgment by: Dunne J.

Status of Judgment: Approved

 

Neutral Citation Number: [2012] IEHC 228

THE HIGH COURT
[2011 No. 21 COS]

IN THE MATTER OF N17 ELECTRICS LIMITED (IN LIQUIDATION) AND IN THE MATTER OF THE COMPANIES ACTS 1963 TO 2009

 

BETWEEN

KENNETH FENNELL AND ACC BANK PLC.
APPLICANTS
AND
N17 ELECTRICS LIMITED (IN LIQUIDATION)

RESPONDENT

JUDGMENT of Ms. Justice Dunne delivered on the 11th day of May 2012
1. This is an application by Kenneth Fennell and ACC Bank plc. (the applicants) for a declaration pursuant to s. 236 of the Companies Act 1963 to 2009, that a business lease agreement dated 1st April, 2005, in respect of “N17 Electrics Superstore in Milltown and Terryland Retail Park” is not binding on the applicants and is not an asset of the company for the purposes of the winding up. Other related relief is also sought.

2. The basis of the applicants’ contention is that as a result of entering into four charges with ACC Bank plc, Mr. Tom Naughton, the owner of the retail units, was unable to avail of the statutory power of leasing conferred by s. 18 of the Conveyancing Act 1881, which power was expressly excluded in the four charges.

3. The respondent contends that it is entitled to rely on the business lease agreement as the basis for its occupation of the properties known as the Terryland units and the Milltown premises and asserts that the lease is an asset of the respondent.

4. It is not in dispute between the parties that as the four charges concerned predate the coming into force of the Land and Conveyancing Law Reform Act 2009, that Act has no bearing upon the issues that arise in this case.
The Charges
5. The first of the charges was dated 19th November, 2004 (“the Milltown Charge”) and was made between Tom Naughton, the borrower, and the bank, whereby the borrower charged premises described therein, being retail premises at Milltown, Tuam, County Galway, comprised in Folio No. 61301F of the Register of Freeholders County Galway, as security for the liabilities described therein. The other charges related to three retail units at Terryland Retail Park (“the Terryland Units”), Galway, and they were as follows:

(a) A mortgage/charge dated 29th June, 2001, in which the borrower, as security for monies advanced by the bank, mortgaged and charged premises known as Unit A3 (registered under Folio No. 43871F County Galway) to the bank.
(b) The second mortgage/charge was dated 12th September, 2002 (“the Second Terryland Mortgage”). The borrower, as security for monies advanced by the bank, charged the premises known as Unit 2 (registered under Folio No. 43758F County Galway to the bank.

(c) The third mortgage/charge was dated 30th May, 2003 (“the Third Terryland Mortgage”) whereby the borrower, as security for the monies advanced by the bank on foot of same, charged the premises known as Unit A1 registered under Folio No. 65397F County Galway to the bank.

6. The Milltown Charge contained the following provision at clause 6.1 headed ‘Negative Pledge’ in the following terms:
“The borrower shall not, except with the prior written consent of the bank,
(a) create, extend or permit to subsist any encumbrance over the secured assets or any of them ranking in priority to or pari passu with or after the security hereby created, or

(b) part with, sell, convey, assign, transfer, lend, lease or otherwise dispose of, whether by means of one or of a number of transactions related or not and whether at one time or over a period of time, the whole or any part of the secured assets or any interest therein.”

7. All of the Terryland Mortgages contained similar clauses as follows: “The borrower covenants with the bank during the continuance of the mortgage … that he will not assign, lease, sublet or part with the possession of the mortgaged premises or any part thereof without the consent in writing of the bank previously had and obtained.”
The various mortgages/charges provided for the bank to appoint a receiver in the event that an act of default under the terms of the respective mortgages/charges occurred and in consequence of such an act of default occurring, the receiver was, by deed of appointment dated 20th January, 2011, appointed by the bank as receiver over the three Terryland retail units, and by a similar deed, was appointed as receiver over the Milltown premises on the same date. No issue arises in relation to the appointment of the receiver.

8. The position in relation to the company is that it was wound up by order of the Court on 31st January, 2011, a petition having been presented to the Court in the first instance on 11th January, 2011.
The Business Lease Agreement
9. The business lease agreement is dated 1st April, 2005 and is very short. It describes the lessor as Tom Naughton and the lessee as N17 Electrics Ltd. of Milltown, Tuam, County Galway. The premises are described as “N17 Electrics Superstore in Milltown and Terryland Retail Park”. The permitted user is described as N17 Electrics. The term of the lease is described as being “from 1st April, 2005 to 1st April 2020”. The rent payable is said to be “€30,000 with a rent review to take place at five-year intervals” and the manner payable is described as “monthly direct debit”.

10. The longest part of the Memorandum of Agreement is the final paragraph which states as follows:

“Whereby the lessor agrees to lease and the lessee agrees to take the premises for the term of and at the rent details of which as set out above and the lessee agrees to pay the amount of the rent and other payments in the manner and at the times described herein and each of the said parties further agree and accept the terms and conditions on their respective parts to be observed and performed and which are set out in the Special and General Conditions attached to this agreement.”
It is then signed by Mr. Naughton as the lessor and there is a signature on behalf of the company, which is a signature by an individual, and there is nothing in relation to the capacity of that individual to sign on behalf of the company and there is nothing to indicate that the document was executed in the manner that would be normally required by a company. The description of the properties to be leased is terse and not very descriptive. It is, to say the least, an unusual form of document to be relied on as amounting to a binding commercial lease.
The Conveyancing Act 1881
11. Certain provisions of s. 18 of the Conveyancing Act 1881 (the 1881 Act) are of relevance to the matters before the Court and therefore it would be useful to set them out here. They are as follows:

“18(1) A mortgagor of land while in possession shall, as against every encumbrancer, have, by virtue of this Act, power to make from time to time any such lease of the mortgaged land, or any part thereof as is in this section described and authorised .
…

18(6) Every such lease shall reserve the best rent that can be reasonably be obtained, regard being had to the circumstances of the case, but without any fine being taken.

…

18(7) Every such lease shall contain a covenant by the lessee for payment of the rent and a condition of re-entry on the rent not being paid within a time therein specified not exceeding 30 days.

…

18(8) A counterpart of every such lease shall be executed by the lessee and delivered to the lessor, of which execution and delivery, the execution of the lease by the lessor shall, in favour of the lessee and all persons deriving title under him, be sufficient evidence.

…

18(13) This section applies only if and as far as a contrary intention is not expressed by the mortgagor and the mortgagee in the mortgage deed, or otherwise in writing, and shall have effect subject to the terms of the mortgage deed or of any such writing and to the provisions therein contained.”

Submissions and Discussion
12. The applicants in this case make the point that the terms of the charges expressly reflect such a contrary intention and, accordingly, the statutory power of leasing contained in the 1881 Act has been excluded and replaced by a conditional power to grant a lease subject to the prior written consent of the bank being obtained, which has not been satisfied in this case. Very simply put, the bank’s case is that as there was no prior written consent in accordance with the terms of the charges, the 2005 business lease agreement is not binding on the bank.
13. In the course of submissions, I was referred to some of the leading textbooks on this topic. Wiley, in ‘Law of Landlord and Tenant’ (2nd Ed.), stated at para. 6.10 as follows:

“Though both the mortgagor and mortgagee have power to lease the land at common law, such leases were of limited effect since, while binding between the lesser and lessee, they could not prejudice the rights of the other party to the mortgage i.e. in the case of a lease by the mortgagor, the mortgagee’s paramount rights to take possession or otherwise realise his security … these difficulties were removed by s. 18 of the Conveyancing Act 1881, which conferred a statutory power of leasing upon both mortgagor and mortgagee, exercisable while either is in possession of the mortgaged land. A lease granted by the mortgagor under his statutory power binds every mortgagee … provided in each case the statutory powers are complied with … it is also important to note that most mortgage deeds restrict the mortgagor’s power of leasing, by requiring the consent of the mortgagee, if the power is not excluded altogether. The point is that the existence of a tenant on the land may hinder the exercise by the mortgagee of his powers to realise his security, e.g. to take possession or to sell the land. If a tenancy is binding on the mortgagee, it may also affect the value of his security, especially if the tenant acquires renewal rights. In ICC Bank v. Verling, the mortgage of an off-licence premises contained a clause that, during the continuance of the security, ‘the statutory and other power of leasing, letting, entering into agreements for leases and letting …’ were not exercisable by the borrower. Lynch J. held that this clause was a sufficient indication of a ‘contrary intention’ so as to exclude the statutory powers of leasing conferred by s. 18 of the Conveyancing Act 1881. Furthermore, following a concession by counsel, he held that a purported lease granted by the mortgagor was null and void when first granted.”
14. Reference was made in that passage to the decision in the case of ICC Bank plc. v. Verling in which Lynch J., having referred to the provisions of s. 18(13) of the 1881 Act, went on to say:
“Clause 15 of the mortgage deed of 31st May 1991, which I have quoted above, is, of course, such a contrary intention as is referred to in s. 18(13) of the Conveyancing Act 1881, and it is clear therefore and indeed counsel for the second and third defendants conceded that the lease of 23rd March 1993 was null and void when it was first granted by the first defendant to the second and third defendants …”
On the basis of those authorities, it was contended that the charges in this case evinced a contrary intention such as that referred to in s. 13 and, thus, it was argued that the statutory power contained therein was excluded expressly and the power to grant a lease could only be exercised in accordance with the terms of the charge which required the prior written consent of the mortgagee.
15. It was also submitted that although it is the contention that the statutory power had been excluded, that even if that were not the case, then, notwithstanding that, the statutory conditions which permit the grant of a lease had not been complied with. That being so, it was argued that the business lease agreement still could not bind the bank, one of the obligations of the lessor created by s. 18 of the 1881 Act being to obtain the best rent that can reasonably be obtained. Reliance was placed on English authority in that regard and I was referred to a passage from Megarry and Wade, ‘Law of Real Property’, 7th Ed., at para. 25-080, a passage which referred to leases granted outside the statutory power, wherein it was stated as follows:

“If the power is excluded and the mortgagor nevertheless grants an unauthorised lease, the lease is void against the mortgagee and his successors in title (unless they are estopped from asserting this), but valid as between the parties to it. The statutory powers of leasing do not deprive the parties of their common law rights to create leases not binding upon each other. For example, if the mortgage contains a covenant by the mortgagor not to exercise a statutory power of leasing without the mortgagor’s written consent, the mortgagor may, nevertheless, grant a yearly tenancy which binds the mortgagor under the principle of estoppel but which does not bind the mortgagee.”
16. It was submitted on behalf of the bank that that is precisely what has occurred in the circumstances of this case.
17. Further reliance was placed on a passage from Fisher and Lightwood’s ‘Law of Mortgage’ at para. 29.18, in which it is stated:

“The mortgagor is unable to confer upon another a greater right than he himself possesses. Thus, in the absence of a statutory or express power of leasing, where, after the mortgage, the mortgagor purports to grant a lease without the privity of the mortgagee, the tenancy will subsist by estoppel between the mortgagor and tenant but will be void against the mortgagee. Such a tenant is liable, like his lessor, to be ejected without notice. His only remedy is against the mortgagor …”
18. A further passage was referred to in support of the bank’s arguments from Woodfall ‘Landlord and Tenant Act’ para 2.169, in which the following passage appears:
“If the mortgage was made before January 15 1882, or if the statutory powers of leasing are excluded or modified, a lease granted by a mortgagor confers on the tenant a precarious title. Although it is good by estoppel as between the tenant and the mortgagor and the world in general, it is liable to be defeated by the mortgagee asserting his paramount title. This principle is not affected by the fact that the tenant is, against the mortgagor, a protected or a statutory tenant under the Rent Act. Where a lease made after the mortgage operates as a precarious tenancy, the mortgagee may treat the tenants of the mortgagor as trespassers; they are not his tenants and he cannot distrain or sue for rent unless a new tenancy has been created as between him and the tenant in possession by an attornment or otherwise. A tenancy was not created:
…

(e) Where the mortgagee received rent under an express authority from the mortgagor.”

19. Thus, it was argued that in circumstances where the mortgagor had provided for the mortgagee to receive the rent under an express authority or by means of an assignment, that still did not create a tenancy binding on the mortgagee under the provisions of the 1881 Act. On that basis, it was submitted that there was no question that the bank was bound by the business lease agreement herein.
20. It was pointed out on behalf of the bank and the receiver that the explanation for the legal position contended for was quite simple, namely, if the position were not so, a mortgagee would simply not be able to enforce its security by obtaining its right to possession, and thus, the value of the security would be rendered pointless or non­existent.

21. I now want to look at a number of authorities that were opened in the course of the submissions on behalf of the applicants. The first of those is the decision in the case of Iron Trades Employers Assurance Association Ltd. v. Union Land and House Investors Ltd. [1937] Ch. 313. In that case, there was a legal mortgage and the defendants had covenanted with the plaintiffs that they would not, except with the previous written consent of the plaintiffs, exercise the power of leasing. By a tenancy agreement, the defendants granted a lease of part of premises included in the legal charge upon a yearly tenancy. The plaintiffs were not asked for and did not give their consent to the execution of the tenancy agreement. In those circumstances, it was held that the defendants, in granting the lease, were not exercising their statutory power and, consequently, they did not commit any breach of the covenant contained in the legal charge. Judgment in that case was opened extensively and I want to refer to a number of short passages from it. It was pointed out in the judgment that the purpose of the proceedings was to have the question determined by the Court as to the respective rights of the parties as to whether the granting of a lease was not a breach of the covenant contained in the charge. Farwell J. stated at p. 317 of his judgment as follows:

“In order to determine this question it is necessary to consider quite briefly the position between mortgagors and mortgagees before the passing of either the Act of 1925 or the Conveyancing Act, 1881. Under the law as it was before the Act of 1881 the position was this, that in the case of a legal mortgage the mortgagor, although in possession, had no power at all to grant a lease which was binding on the mortgagee. Any lease granted by him to some third party would be in no way binding on the mortgagee and as between the lessee and the mortgagee would create no estate or interest other than that which I will mention in a moment. So far as the mortgagor, who had granted the lease, was concerned, it was binding upon him as against the lessee, and he was estopped from disputing it and as against the mortgagor or against any one other than a person having a title paramount to the mortgagor, e.g., the mortgagee, such a lease was good and the lessee was entitled to the benefit conferred thereby, but so far as the mortgagee was concerned the lessee had no estate or interest as against him, except that he had a right to redeem in the event of the mortgagee taking steps to evict him from possession of the property which had been leased to him by the mortgagor, but beyond that right to redeem he had no rights as against the mortgagee nor had he any estate or interest as against the mortgagee in the land at all …”
Farwell J. continued:
“That position was altered by the Conveyancing Act, 1881, because by that Act express power was given to the mortgagor in possession to grant leases on certain terms and subject to certain conditions which were good as against the mortgagee. The effect of that statutory power was to enable the mortgagor for the first time to do something which hitherto it had not been possible for him to do-namely, to grant a lease during the continuance of the charge which would be binding on the mortgagee. The fact that that power was given to the mortgagor did not, and as the law now stands does not, in my judgment, deprive the mortgagor of the power of doing that which he could have done apart from the Act – namely, grant a lease to a third party, which without the consent of the mortgagee is not binding on him, but is binding as between the lessor and the lessee. I cannot find that the power which the mortgagor had in that regard was taken away by the Act, which merely gave the mortgagor a wider power of granting leases on certain conditions which were binding on the mortgagee. The position, apart from the Act, in my judgment, remained the same. The mortgagee as soon as he ascertained that the mortgagor had granted a lease to a third party was entitled to take steps immediately to evict the tenant, to treat him as a trespasser, and, subject to the tenant’s right to redeem, the mortgagee could evict him and recover possession of the property.”
So far as those passages are concerned, it was submitted that they are a useful exposition of the law before the enactment of the 1881 Act, and following its enactment and I see no reason to disagree with that submission. There was a further passage from that judgment which it was stated by Mr. McDonald on behalf of the applicants did not represent the law, and in that passage, Farwell J. commented:
“On the other hand, he might, if he desired, confirm what had been done, but if, knowing the facts, he stayed his hand and did nothing, he might find himself in danger of being held to have acquiesced in and thereby confirmed the lease and, therefore, not entitled to oust the tenant.”
There are some further passages which I think it would be useful to refer to from the judgment of Farwell J. in that case. He continued at p. 322 as follows:
“There is nothing to prevent the mortgagor and mortgagee agreeing that the statutory powers shall not be exercised or shall be exercised in a wider or less restricted manner than that provided by the Statute. In my judgment, the effect of inserting in the mortgage a covenant by the defendants that they will not, except with the consent in writing of the mortgagee, exercise the power of leasing given by the Statute is to impose a further and additional term on the obligations which are contained in the Act itself, and that the exercise or purported exercise of a power for which no previous consent has been obtained is not an exercise of the statutory power at all, because, as the result of the agreement made between the parties, the only power of leasing given by the Statute is the power of leasing with the consent of the mortgagee. If I read into the section an overriding obligation on the mortgagor to obtain the written consent of the plaintiffs, the effect must be that if there is no such written consent, then the power which otherwise would have been exercisable by the mortgagor has not been validly exercised.”
22. That paragraph seems to me to set out the position that applies as a general rule.
23. Farwell J. continued at p. 323 to state:

“They had deprived themselves of the power of granting statutory leases without the written consent of the plaintiffs, and consequently when they granted this lease they were not exercising and could not have been exercising the power under the Statute and were only doing that which they could do apart from the Statute – namely, grant a lease which was not binding on the mortgagees.”
That decision, it was submitted, is a clear illustration that one can have a situation where a mortgagor grants a lease but the lease will not be binding on the mortgagee by virtue of the terms of the charge between the mortgagor and the mortgagee.
24. The next case to which I want to refer is the case of In Re O’Rourke’s Estate [1889] 23 LR Ir. 497. As appears from the head note in that case, where, subsequently to a mortgage, the mortgagor creates new tenancies, and submits rental to mortgagee, who raises no objection, such tacit acquiescence does not suffice to create a new tenancy as against the mortgagee. The act of the solicitor having carriage, in approving the rental which sets out such tenancies, will not create a new tenancy. The act of the receiver, in accepting rent from such tenants, and paying interest there out to the mortgagee, will not create a new tenancy. At p. 500 of the judgment, Monroe J. stated:

“I take it that the law on this subject is free from all manner of doubt. A lease made by a mortgagor, subsequent to the mortgage and not coming within the provisions of the Conveyancing and Law of Property Act, 1881
…

is absolutely void as against the mortgagee. He can treat the tenant as a trespasser, and evict him without notice. It is open, however, to the mortgagee and the tenant by agreement, express or implied, to create a new tenancy; and the question which always arises is the mere question of fact, whether such an agreement has been made in the particular case. If the mortgagee enters into the receipt of the rents and continues to take them from the tenants, this is almost conclusive evidence of an agreement between the mortgagee and the tenant for a new tenancy from year to year on the terms of the old tenancy; or, if the mortgagee served notice on the tenant, requiring him to pay his rents direct to the mortgagee, and the tenants do not dissent, these are facts from which a jury may, and probably ought, to infer the existence of such a contract of tenancy :… I have therefore to enquire in this case whether there are facts proved from which I ought to infer the existence of such an agreement. Three matters were relied upon not to set up the leases, but to create a tenancy from year to year on the terms of those leases, respectively:-

(i) The actions of Judge Lefroy [a party to the proceedings] who was all through representing the mortgagee;

(ii) the action of the solicitor having carriage who filed the petition for the mortgagee, and approved of the rental furnished by the agent; and

(iii) the action of the receiver in receiving the rents and paying the interest thereto to the mortgagee.

As regards the action of Judge Lefroy, which applies to M’Breen’s case alone, what is said is this:- He was furnished with the rentals; he knew that at the date of sale to the O’Rourkes, the lands were in the owner’s hands; he saw the name of M’Breen included in the list of tenants; he saw that rent was being paid by him; he knew that out of that rent his interest was being paid; and as he took no steps to object to such a tenancy, he must now be presumed to have adopted it. I certainly cannot infer the creation of a new tenancy between the tenant and the mortgagee merely because the mortgagee takes no active steps to disavow a tenancy created by the mortgagor. The mortgagor, while in possession, and bound to keep down the interest on his mortgage, is at liberty to manage the lands as he pleases. It is not for the mortgagee to interfere with that management unless he chooses to go into possession. He treats the tenancy as one binding on the mortgagor, but in no way binding upon himself if he find it afterwards for his interest to repudiate it.”

25. The final decision referred to in the course of these submissions on behalf of the applicants was the case of Taylor v. Ellis [1960] 1 Ch. 368. That was a case which concerned a mortgage dated 27th October, 1924, which excluded the mortgagor’s statutory power of leasing unless the mortgagee should consent in writing to the lease. Subsequently, the surviving mortgagor purported to grant a monthly tenancy to W.H. The surviving mortgagor, who granted the tenancy, died on 11th July, 1943, and the original mortgagee died on 21st July, 1957. There was no evidence that the mortgagee did give written consent to the grant of the tenancy, but there was no positive evidence that he did not and it was possible that he had: it was admitted that the mortgagee knew of the tenancy. No mortgage interest was paid after October 1950, and on 5th August, 1959, the mortgagee’s personal representative issued an originating summons claiming possession of the property subject to the mortgage. It was held in that case:
(i) That the onus was on the tenant to prove that the mortgagee gave written consent to the grant of the tenancy, and, therefore, in the absence of any evidence of such consent, the tenancy was not, to begin with, binding on the mortgagee.
(ii) that the tenancy had not become binding on the mortgagee by reason of the events subsequent to the grant of the tenancy, for it would be wrong to infer merely from the facts that the mortgagee, having knowledge of the tenancy, allowed the tenant to remain in possession, and that no interest had been paid for nine years, that the mortgagee had consented to take the tenant as his tenant. The plaintiff, accordingly, was entitled to possession against the tenant.

26. It appears from the head note that the decision in In Re O’Rourkes Estate was applied.
27. In the course of his judgment in that case, Cross J. commented on the evidence in relation to the issue of consent and stated as follows:

“… there is no positive evidence that he did not give his consent and it remains possible that he may have done so.
On those facts, the point that has been argued is on whom does the onus lie that the establish that the mortgagee either gave or did not give his consent in writing.

I think the matter can best be decided how the point would be pleaded in an action of ejectment. It seems to me that the mortgagee, in his statement of claim against anybody in possession of the land, would have to do no more than set out the mortgage, which showed that he had the immediate legal estate, and claimed possession. It would not be necessary for him to allege that the defendant claimed to be in possession as a tenant, but that the tenancy was not binding on him: it would be sufficient for him to say that he had the legal estate as mortgagee, and that he claimed possession.”

28. Cross J. went on to say:
“I think that it must be taken that to begin with, this tenancy was not binding on the plaintiff. Then the question arises: did the mortgagee become bound by the tenancy by reason of subsequent events? It is, of course, quite common for a mortgagee who was not previously bound by a tenancy to consent to take the mortgagor’s tenant, whom he could have treated as a trespasser, as his own tenant. The commonest way in which that happens is when a mortgagor fails to pay the mortgage interest and the mortgagee serves a notice on the tenant to pay the rent to him. Then, a new tenancy is created between the mortgagee and the mortgagor’s tenant. But all that happened in this case was that for a great many years, the tenant was allowed to remain in occupation of the property, and then there is the very curious circumstance that from October 5th 1950 onwards, no mortgage interest was paid.
Apart from the second point, it does not seem to me that the fact that the tenant of the mortgagor, who could have been treated by the mortgagee as a trespasser, was allowed to remain in possession for a long period could itself in any way preclude the mortgagee from treating him as a trespasser if and when he desired to do so. After all, as long as the mortgage interest is being paid, the mortgagee may perfectly well be content to allow the tenant to remain in possession. The only way in which he can turn him out of possession is by going into possession himself, which is a thing a mortgagee is very unwilling to do. I think that it would be quite wrong to infer, merely from the fact that the mortgagee allowed the tenant to remain in possession, having knowledge of the tenancy – there is no doubt in this case, and it is accepted, that Thomas Taylor knew of the tenancy – that the mortgagee consented to take the tenant as his tenant.”

29. Cross J. then went on to quote from one of the passages in the decision in In Re O’Rourke’s Estate to the effect that one cannot infer the creation of a new tenancy between the tenant and the mortgagee because the mortgagee takes no active steps to disavow the tenancy created by the mortgagor.
30. A number of useful observations can be made from the authorities referred to above. I think, first of all, that it is clear that a mortgagor and mortgagee can expressly agree to exclude the power conferred by s. 18 of the 1881 Act. If the power is excluded, it may be done in a way that permits the mortgagor to grant a lease subject to the prior consent of the mortgagee. If such prior written consent is not obtained by the mortgagor and the mortgagor proceeds to enter into a lease with a tenant, the lease will be binding on the mortgagor as lessor, but as against the mortgagee, the lease will not be binding. It is also clear that in certain circumstances, the lease may be binding on the mortgagee in circumstances such as those described in the authorities referred, where, for example, the mortgagee “serves a notice on the tenant to pay the rent to him”. It is also clear from the authorities referred to above, that the mere fact that the mortgagee is aware of the existence of a tenancy and that a tenant is paying rent to the mortgagor which is being used to pay the obligations of the mortgagor to the mortgagee, is not, of itself, sufficient to create a relationship between the mortgagor’s tenant and the mortgagee.

31. I think it is clear from the affidavits sworn herein, and in particular, from the affidavit of Michael McEvoy, the official liquidator of the respondent herein, and from the affidavit of Tom Naughton, the borrower, that no prior written consent of the bank had been obtained to the creation of the business lease agreement. The most that is asserted by Mr. Naughton, the borrower, is that he believed that he had delivered a copy of the agreement to the bank himself. Equally, I think it is fair to say that the bank was at all times aware of the fact that the respondent was in occupation of the premises, although there is a dispute as to whether or not the bank was aware of the existence of the business lease agreement.

32. The approach of the respondent as set out in the Points of Defence has been to assert that the building lease agreement constitutes a valid and binding tenancy agreement between the parties, presumably, that is the company and Mr. Naughton, the borrower. It is further pleaded that the company is a stranger to the allegation that the borrower did not seek the prior written consent of the bank to the business lease agreement, and insofar as that is alleged, it is asserted that it was not incumbent upon the company to seek any such written consent from the bank. It was also denied that the borrower had no power to grant the business lease agreement and that the negative covenants contained in the charges did not have the effect contended for by the bank. It was also pleaded in the points of claim as follows:

“Insofar as the bank is not a party to the business lease agreement, it is admitted that the bank is not bound by same but it is denied that the bank is entitled to ignore the contractual reality as pertains between the respondent and the borrower.”
The points of claim go on to state that the bank is “by virtue of the conduct referred to in the affidavits sworn on behalf of the respondent herein, and in the manner described in the respondent’s outline legal submissions of 6th March, 2012, estopped from denying the validity of the company’s tenancy pursuant to the agreement”. It is also specifically pleaded that the bank waived any requirement for prior written consent articulated in the mortgages relied upon.
33. I now want to look at the submissions of the respondent in support of those pleas.

34. Mr. Redmond S.C. on behalf of the respondent referred to a number of factual matters. First of all, he pointed out that N17 Electrics Limited was in occupation of some of the premises prior to the first mortgage. Therefore, in those circumstances, he submitted it would not have been possible for the mortgagor to get prior written consent given that the tenancy was already in existence. It was further noted that the aim of the bank in dealing with Mr. Naughton was at all times to ensure that the rentals being paid by N17 Electrics Limited was sufficient to defray the payments required by the bank from Mr. Naughton. There was also a submission made on behalf of the respondent to the effect that the bank knowingly facilitated the non payment of tax by Mr. Naughton. This assertion was made on the basis that the business lease agreement provided for rent in the amount of €30,000 per annum in circumstances were the bank was aware that the rent actually being paid was a multiple of this figure. The point was made that the bank facilitated or acquiesced in this arrangement because the less tax paid to the Revenue, the more money would have been available to the bank to repay the amount due to the bank. This allegation was hotly contested on behalf of the applicant herein and I note that there is nothing in the affidavit sworn by Mr. Naughton on behalf of the respondent herein to support such a contention.

35. The main point made by Mr. Redmond on behalf of the respondent was that at all times, the bank was aware of the occupation by N17 Electrics Limited of the relevant units at Terryland and Milltown and that the rent payable by N17 Electrics was used by Mr. Naughton to make the repayments due by him to the bank on foot of the various charges. It was further submitted that the bank was aware of the arrangements between the company and Mr. Naughton and expressed no dissatisfaction and is therefore estopped from relying on the negative pledge clauses contained in the various charges. To put it simply, it was submitted that the bank had taken the benefit of the arrangements between the company and Mr. Naughton and therefore the bank had to take the “flip side” of the arrangement.

36. There was also an issue raised as to the apparently inconsistent approach of the receiver in seeking to serve notice pursuant to s.290 of the Companies Act 1963. While this was done, I do not think that this fact in any way assists me to determine the issue in controversy between the parties which relates to the question as to the status of the 2005 Business Lease Agreement.
Decision
37. I now want to look more closely at the factual background to this matter. The first charge herein was made on 29th June 2001 and related to Unit A3 at Terryland; the second charge was made on 12h September 2002 and was in respect of Unit 2 at Terryland; the third charge was made on 30th May 2003 and was in respect of Unit A1 at Terryland and the final charge was made on 19th November 2004 in respect of the retail premises at Milltown, Tuam, County Galway.

38. Mr. Gavigan in an affidavit sworn herein on the 26th January 2012 on behalf of the bank accepted that a copy of the business lease agreement was found in the bank files but pointed out that there was no prior request for the bank’s consent to that agreement and he stated that the bank had not furnished its consent to it.

39. I have also looked at the various letters of sanction relating to the provision of further facilities to Mr. Naughton. The various letters of sanction speak of the bank’s requirement that leases be put in place with “rental payments sufficient to meet repayments” or “in an amount not less than the monthly repayment”. The letters of sanction further required that “no lettings or renewal… are to be made without the bank’s prior consent in writing”.

40. I have read carefully the affidavit of Mr. McEvoy, the official liquidator and that of Mr. Naughton in regard to the issue of consent. I note that an issue is raised as to a 2002 tenancy agreement executed by Mr. Naughton and the company which Mr. Gavigan states was never on the bank’s file but which was on the bank’s solicitors file. I also note the criticism of the bank’s dealings with Mr. Naughton contained in Mr. McEvoy’s affidavit. It does appear that the bank was somewhat lax in its approach to the question as to whether appropriate formal leasing arrangements were in place as between the borrower, Mr Naughton, and the company, given the requirements contained in the various letters of sanction. Having said that I am satisfied on the evidence before me that no prior consent, written or otherwise, was furnished by the bank to the 2005 business lease agreement. The fact that the company was in occupation of the premises did not mean that that a formal lease could not be put in place on terms which would have met the bank’s requirements and therefore, presumably, would have received it’s consent.

41. That leaves the question as to how it can be asserted the bank is estopped from denying the validity of the 2005 business lease agreement. The high point of the arguments made on the respondent’s behalf in this regard is to be found in para 30 and 31 of the affidavit of Mr. Naughton. Mr. Naughton averred that he was at “at loss to understand the bank’s contention… that it was not aware or did not consent to the creation of the business lease agreement of the 1st April 2005”. Mr. Naughton went on to say:-

“I executed the said agreement to formulise the relationship of landlord and tenant which existed between the company and I at the bank’s request and I believe that I delivered a copy of the agreement to the bank myself. I say and believe that in that circumstances where my dealings with the bank, both personally and as a director of the company, were always closely related to the company’s trade from the Milltown and Terryland units, I am surprised that the bank is now contending that it was unaware of or had not consented to this occupation.”
42. At para 31 of his affidavit he continued:-
“I say and believe that the company’s occupation of the said units has been well known to the bank for over ten years and that each of the three mortgages which I executed over the units was agreed against the backdrop of this use and occupation. Had the bank for a moment suggested that some formal written consent was need (sic) to regularise the company’s use of the premises, I say and believe that I would have sought same. However, in circumstances were the bank was content to advance monies to me on more than one occasion over the ten years on the strength of security which they knew to occupied by the company by agreement, I say and believe that I at all times understood that this occupation was with the agreement and consent of the bank.”
43. There are a number of observations to make in respect of those averments. There is no doubt whatsoever that the bank was aware of the company’s occupation of the units. There is also no doubt that the bank was anxious that a formal leasing agreement be put in place between the company and Mr. Naughton and it is also the case that this requirement was referred to in various letters of sanction and it is also clear from those letters of sanction that what was necessary was the prior consent of the bank to any lease. However it is at this point, it seems to me, the arguments of the respondent fall down.
44. I have already indicated that I am satisfied that there was never any prior consent to the 2005 business lease agreement. When one considers its terms, it is not difficult to see the reason why the bank would not agree to be bound by a lease without its prior consent. The 2005 business lease agreement provided for a rent payable of €30,000. The terms of that agreement are somewhat unclear as to whether that was intended to be a payment of €30,000 per month or per annum but by and large it appears to be accepted by all parties that what was to be understood by the phrase in the business lease agreement was that the sum was payable per annum. The other unsatisfactory aspect of the business lease agreement relied on by the respondent herein is the reference in that business lease agreement to the fact that “each of the parties further agree and accept the terms and conditions on their respective parts to be observed and performed and which are set out in the schedule and general conditions attached to this agreement”. It is a matter of significance that no term and conditions were attached to the agreement. It is accepted the rent payable by the company to the borrower was in multiples of the figure set out in the business lease agreement. It seems to be me to be inconceivable that the bank would ever have agreed to a lease of the various premises in those terms. In addition, it is extremely unusual to have one lease of separate properties at different locations. It would have I been entirely contrary to the bank’s interests. There is nothing in the papers before me to indicate that any representatives of the bank conveyed to Mr. Naughton or the company in any way that it accepted the validity of the lease or that it was in any way binding on the bank.

45. I was referred also by the respondent to the decision in First Energy (UK.) v. Hungarian International Bank Limited, [1993] B 3 LV1409, a decision of the Court of Appeal in the United Kingdom, which concerned the issue of ostensible and actual authority and whether or not an official of a bank had ostensible or actual authority to sanction a credit facility and had authority to communicate the offer of credit facility and in that regard it was held in construing a letter of the 2nd August 1990, enclosing draft hire purchase agreements in respect of a number of contracts that “the Court would take into account the surrounding circumstances which reasonable persons in the position of the parties would have in mind. On the facts, a reasonable business man placed in the same objective setting as C would have read the letter as communicating an unconditional and firm offer. That offer was capable upon acceptance of being converted into a binding contract.” The Court went on to indicate that on the facts, J.’s position as senior manager clothed him with ostensible authority to communicate that head office approval had been given for the facility offered in the letter of the 2nd August 1990. That decision was relied on to argue that while the bank’s employees may not have had an authority to commit the bank they were in a position to communicate a decision made by the bank in relation to sanction of loans and to that extent it was argued that they had ostensible authority to bind the bank. That may be so but it does not seem to me that the fact that loans having been sanctioned on certain terms and then advanced to the borrower without those terms being fully implemented assists the respondent in this case.

46. I have already set out a number of authorities relied on by the applicant in support of the case made by the them to the effect that whilst a lease entered into between the borrower and its tenant, in this case the company, may be binding as between them, it is not binding on the mortgagee. The facts and circumstances described in the various authorities referred to above clearly establish that to be the case. I cannot see any basis for suggesting that the bank is, in any shape or form, estopped from denying the validity of the business lease agreement. It seems to me that the respondent has simply failed to engage with the principles to be found in the authorities.

47. There might be an argument to be made that modem commercial realities are somewhat different to the facts and circumstances outlined in those authorities which are of some vintage. However, the answer to that argument may be simply that those principles have stood the test of time because the logic of the principles is unassailable; the one thing I am sure of is that on the facts of this case no commercial reality would justify departing from those well established authorities. It is essential from a lender’s point of view that the secured property is available as security in the event of default by the borrower. It is therefore important to ensure from the lender’s point of view that any impediment to the realisation of it’s security by reason of a lease binding on the mortgagee should be one in respect of which the mortgagee had furnished it’s consent. That is the importance and the function of the negative pledge clause contained in the various mortgages/charges. From the bank’s point of view in this case, there was no commercial reality apparent in the business lease agreement. It is inconceivable that the bank would ever have consented to a lease in the terms of the business lease agreement had it been asked to do so. It’s conduct in granting loans from time to time without appropriate leases having been put in place does not alter the position.

48. In the circumstances I am satisfied that the applicants herein are entitled to the declaration sought herein.

 Hyland -v- Residential Tenancies Board

[2017] IEHC 557 (06 October 2017)

Noonan J.
Status:
Approved
[2017] IEHC 557
THE HIGH COURT
[2017 No. 103 MCA]
BETWEEN
AMY HYLAND
align=”right”>APPELLANT
AND
RESIDENTIAL TENANCIES BOARD

RESPONDENT
AND
LUKE CHARLTON AND MICHAEL COTTER

NOTICE PARTIES

JUDGMENT of Mr. Justice Noonan delivered on the 6th day of October, 2017
1. This is an appeal on a point of law brought pursuant to s. 123 (3) of the Residential Tenancies Act, 2004 (“the 2004 Act”) against a determination of the Tenancy Tribunal of the respondent (the RTB) made on the 17th February, 2017.
Background Facts
2. The notice parties are bank appointed receivers over a number of properties owned by Denis Scriven, the appellant’s stepfather. These properties include a dwelling at 31 Carrigmore Crescent, Saggart, Citywest, Dublin 24. The appellant became the tenant of that property pursuant to an arrangement with Mr. Scriven. The notice parties were appointed by deed on the 4th June, 2014. They subsequently registered the tenancy with the RTB.

3. When they did so, they were not in a position to ascertain the commencement date of the tenancy because neither the appellant nor Mr. Scriven were prepared to cooperate with them. By letter of the 5th June, 2014, the second notice party wrote to the appellant as the occupant of 31 Carrigmore Crescent advising her of the appointment of the receivers and asking her to provide details of the basis upon which she occupied the property. She responded in the following terms by letter of the 24th June, 2014:

“Re: my home at 31 Carrigmore Crescent.
My landlord is Ger Scriven. My rental agreement is with Ger Scriven.

I have been told to call the guards should you or anyone working with you come to my home! Please contact Ger Scriven for anything to do with this property.

Amy (the occupant).”

4. By letter of the 7th July, 2014, from the notice parties’ solicitors to the appellant, they called upon her to pay the rent due to the notice parties as being the only persons legally entitled to receive it. In the intervening two years or so, no rent was paid by the appellant to the notice parties and accordingly by letter of the 17th June, 2016, the solicitors for the notice parties called upon the appellant to vacate the premises within 21 days.
5. The appellant failed to do so and accordingly the notice parties served a Notice of Termination on the 17th August, 2016. An application for adjudication in respect of the appellant’s overholding was made to the RTB and came on for hearing before an adjudicator on the 9th November, 2016. The appellant did not appear at the hearing and the notice parties were represented by their solicitor. The adjudicator determined that the appellant should vacate the premises within 28 days and pay a sum of €7,540 by way of arrears of rent in instalments. The appellant appealed the adjudicator’s determination to the Tenancy Tribunal before which a hearing took place on the 23rd of January, 2017.

6. On that occasion the notice parties’ solicitor again attended and the appellant attended and was represented by a Mr. Seery, an engineer. It would appear that Mr. Seery on behalf of the appellant made two points to the Tribunal. The first was that the appellant is a “child” of the landlord, Mr. Scriven within the meaning of s. 3 (2) (h) of the 2004 Act and accordingly the provisions of the Act did not apply.

7. The second point made by Mr. Seery was that Mr. Scriven’s wife, Ms. Samantha Hyland was the appellant’s mother and was effectively a joint landlord of the property by virtue of her marriage to Mr. Scriven and the fact that the appellant had paid rent both to her and Mr. Scriven on a periodic basis. It would appear that the appellant stated in evidence that she had taken up occupancy of the premises in mid 2015 and had previously been in occupation in 2014 having left for alternative accommodation before returning. The appellant confirmed that she had written the letter of the 24th June, 2014 acknowledging that Ger Scriven was her landlord.

8. The third point made by Mr. Seery was that the registration of the tenancy by the notice parties was invalid and therefore the Tribunal had no jurisdiction in the matter.
Findings of the Tribunal
9. The Tribunal found that the 2004 Act did apply to the case because the appellant was not a “child” of the landlord within the meaning of s. 3 (2) (h). It gave its reasons for so finding.

10. Secondly, it found that submissions regarding the registration of the tenancy were not within the remit of the Tribunal as this was a matter between the RTB and the party lodging the dispute. The Tribunal found as a fact that Mr. Scriven was, and at all times remained, the appellant’s landlord and in that regard noted the content of her letter of the 24th June, 2014. The Tribunal rejected the appellant’s submission that her mother was also her landlord. It noted that in subsequent correspondence between the appellant and the notice parties and their solicitors, it had never been alleged by her that her mother was a joint landlord of the property and that her assertions to the contrary were therefore not credible. Furthermore, neither the appellant nor Mr. Scriven gave evidence in support of the proposition that her mother was a joint landlord.

11. The Tribunal accordingly affirmed the determination of the adjudicator that the notice of termination was valid and that the appellant should vacate within 56 days of the date of issue of the order. The Tribunal also determined that arrears of €8,060 were due and provided for payment by instalments.

The Appeal to the High Court

12. The within notice of motion, issued by the appellant as a litigant in person, merely states that the appellant appeals against the decision and finding of the Tribunal determination. Section 123 of the 2004 Act provides in relation to a determination order that:

“(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.”
13. Order 84C of the Rules of the Superior Courts in relation to statutory appeals such as the present one, provides at r. 2 (3):
“(3) Where the relevant enactment provides only for appeal to the High Court on a point of law, the notice of motion shall state concisely the point of law on which the appeal is made.”
14. Clearly therefore, the notice of motion in the present case entirely fails to comply with the requirements of O. 84C. In that regard, when the matter was before the court on the 5th April, 2017, I directed the appellant to identify the point of law which she sought to ventilate on the appeal. That direction appears not to have been complied with. In the normal way, this would cause the appeal to fail in limine. However, having regard to the fact that this point was not explicitly relied upon in argument by the RTB or the notice parties and given that the appellant lodged the appeal as a litigant in person but is now legally represented, I propose to consider the substantive issues raised.
The Issues

15. It was agreed between the parties that three issues arise for consideration:

1. Is the appellant a “child” of the landlord within the meaning of the 2004 Act so that it does not apply? As noted above, the Tribunal concluded that the appellant was not a “child” and thus the Act did apply.
2. The Tribunal lacked jurisdiction to deal with the matter by virtue of the fact that the tenancy was not validly registered. The Tribunal held that this was not within its remit.

3. The Tribunal ought to have adjourned or stayed the proceedings pending the determination by the High Court of a claim by the appellant’s mother to an interest in the property the subject matter of these proceedings.

Discussion
16. I propose to deal with each of these issues in turn.
Issue 1.
Section 3 of the 2004 Act insofar as relevant to this appeal provides as follows:

“(1) Subject to subsection (2), this Act applies to every dwelling, the subject of a tenancy (including a tenancy created before the passing of this Act).
(2) Subject to section 4 (2), this Act does not apply to any of the following dwellings—…

(h) a dwelling within which the spouse, parent or child of the landlord resides and no lease or tenancy agreement in writing has been entered into by any person resident in the dwelling, …”

It is not suggested in the present case that a written lease or tenancy agreement was entered into. The only issue that arises therefore is the meaning to be attributed to the word “child” in the subsection. Section 4 (1) provides that:
“ ‘child’ includes a person who is no longer a minor and cognate words shall be construed accordingly;”
17. Therefore no explicit definition of the word “child” is to be found in the 2004 Act. Like any other piece of legislation, the 2004 Act must be interpreted in accordance with well settled canons of construction, the first and most basic of which is that words should be accorded their natural and ordinary meaning. The appellant has sought to argue that in the light of evolving concepts of family, the word “child” is ambiguous and unclear as to its meaning and in the light of those same concepts, it ought to be regarded as including a stepchild. I cannot accept that proposition. The word “child” in its natural and ordinary meaning can only refer to the biological offspring of a natural person. Such a person’s son or daughter is a “child” of that person. Of course whether a person is the biological offspring of another is, with advances in medical science, perhaps a more complex question that it used to be. What is clear however is that a person who has no biological connection to another cannot be the latter’s “child”. A stepchild is thus not a “child”.
18. If there were any doubt about this, and I believe there is none, it is removed by s. 39 of the Act itself. That section provides that a tenancy shall terminate on the death of the tenant save where certain conditions are satisfied. Those conditions include that stipulated in s. 39 (3) (a) (iii) that the dwelling was at the time of the death of the tenant occupied by:

“(iii) a child, stepchild or foster child of the tenant, or a person adopted by the tenant under the Adoption Acts 1952 to 1998, being in each case aged 18 years or more…”
19. The subsection therefore clearly recognises that a child is something different from a stepchild or indeed a foster child or an adopted child. In a different context, s. 35 of the Act at subs. (4) defines a reference to a member of the landlord’s family for the purposes of the Table at s. 4 of the Act as being a reference to any spouse, child, stepchild, foster child, grandchild, parent, grandparent, stepparent, parent-in-law, brother, sister, nephew or niece of the landlord or a person adopted by the landlord under the Adoption Acts, 1952 to 1998. Here again, a clear distinction is drawn between a child and a stepchild. Since the passing of the 2004 Act, separate reference to an adopted child is now no longer necessary by virtue of s. 18 of the Interpretation Act, 2005 which expressly provides that a reference to a child of a person in any enactment shall be construed as including a reference to an adopted child as defined.
I am therefore satisfied that on a literal interpretation of s. 3, the meaning of the expression “child” is clear and unambiguous and accordingly does not apply to the appellant.
Issue 2.
20. The appellant’s second argument is that the Tribunal had no jurisdiction to deal with the matter on account of some alleged infirmity in the registration of the tenancy with the RTB. Although the appellant does not spell out clearly what this infirmity is, it seems to arise from para. 3 of her first affidavit in which she avers:

“The receivers purported to register the property under a part 4 tenancy. I say that the receiver was incapable of doing so. Further I say even if he were capable (though this is not admitted), the application contains material inaccuracy that leaves any registration made on foot of same without validity. The material inaccuracies were fundamental to the registration pertained, inter alia, to the identity of the landlord which was incorrect, and the commencement date of the tenancy which was incorrect etc.”
21. The appellant does not make clear what she means by the identity of the landlord being incorrect because it could either be that the identity of the landlord was Mr. Scriven, and not the notice parties, or alternatively that it was Mr. and Mrs. Scriven and not the notice parties. In either event the objection is misconceived. The receivers undoubtedly had a sufficient interest in the property to register the tenancy when they did, having being lawfully appointed in relation to it.
22. Furthermore, if the suggestion is that Mrs. Scriven was the joint landlord and she neither registered the tenancy nor is noted as a landlord, the Tribunal found as a fact on all the evidence which was before them that Mrs. Scriven was not a landlord of the property. This was clearly a finding of fact that was open on the evidence and cannot be challenged in an appeal on a point of law. In effect the appellant is arguing that the Tribunal reached the wrong conclusion on the evidence, clearly a matter which goes to the merits and is outside the scope of this appeal.

23. The point about the commencement date of the tenancy being inaccurate cannot in my view avail the appellant in circumstances where both she and her stepfather refuse to cooperate with the notice parties and provide this information.

24. Perhaps the most important point here however is that the jurisdiction of the Tribunal itself, to which the appellant appears to have submitted by her participation, was conferred by the RTB accepting the registration of the property in the first instance. If the RTB’s decision to do so had been made outside of its jurisdiction, as the appellant now contends, then it seems to me that the appropriate way of challenging the registration was to seek judicial review of the decision to register. Having not done so, I do not think the appellant can now be heard to criticise the Tribunal for failing to come to the conclusion that it did not possess the requisite jurisdiction to hear the appeal from the adjudicator.
Issue 3.
25. The final point made in argument before this court for the first time was that the Tribunal ought to have adjourned or stayed the hearing pending the outcome of proceedings brought in the High Court by Mrs. Scriven claiming an interest in the property. It has to be said that those proceedings, initiated by Mrs. Scriven in 2013 as a litigant in person, appear to have been pursued with little enthusiasm by her. It took some four years for Mrs. Scriven to deliver a statement of claim which she finally did on the 27th February, 2017, and only then in response to a motion brought by the notice parties to have the proceedings struck out for want of prosecution. In my view the Tribunal was perfectly correct in proceeding to hear and determine the appeal as it was tasked to do. More importantly however, no application was ever made to the Tribunal for an adjournment or a stay pending the High Court proceedings. This issue was therefore never confronted by the Tribunal nor was it asked to make any determination in relation to such issue.

26. In that respect, I cannot see how this could form the basis for an appeal on a point of law to this court. A similar statutory provision under the Freedom of Information Act, 1997 was considered by me in McKillen v. The Information Commissioner [2016] IEHC 27. Section 42 of the 1997 Act provided for an appeal to the High Court on a point of law from a decision of the Information Commissioner in terms similar to s. 123 (3) of the 2004 Act. In McKillen, I noted (at para. 59):

“A s. 42 appeal is not a de novo hearing where the appellant is at large to advance new arguments or evidence not put before the respondent. It is an appeal on a point of law which was considered and dealt with by the respondent…. As Smyth J. remarked [in South Western Area Health Board v. Information Commissioner [2005] 2 IR 547], it would be entirely unsatisfactory if appeals on pure points of law could be run on the basis of matters never raised before, let alone considered and decided by, the respondent. That would transform the appeal into something quite different from that envisaged by the Act.”
27. I am therefore satisfied that not only is this point without merit but the appellant has no entitlement to raise it in this appeal.
Conclusion
28. For the reasons I have explained, I am satisfied that this appeal must fail and I will accordingly dismiss it.

 

 Tully -v- The Private Residential Tenancies Board & anor

[2014] IEHC 554 (06 November 2014)
Title:
Tully -v- The Private Residential Tenancies Board & anor
Neutral Citation:
[2014] IEHC 554
High Court Record Number:
2013 418 MCA
Date of Delivery:
06/11/2014
Court:
High Court
Judgment by:
Keane J.

JUDGMENT of Mr. Justice Keane delivered on the 6th November 2014
Introduction
1. This is an appeal on a point of law pursuant to the terms of s. 123, ss. 3 of the Residential Tenancies Board Act 2004 (“the Act”). The decision appealed is a determination of a Tenancy Tribunal (“the Tribunal”), embodied in a determination order of the Private Residential Tenancies Board (“the Board”) made on the 18th October 2013.
Background
2. The decision of the Tribunal was made in the following circumstances. On the 25th March 2013, the appellant, as tenant, submitted an application for dispute resolution to the respondent Board, identifying the second named respondent as his landlord (“the landlord”), in respect of certain premises at Butterfly Hill, Newcastle, County Wicklow, where both the appellant and the landlord reside.

3. At the request of the appellant and in accordance with the Act, the matter was referred in the first instance to an adjudicator. After a hearing on the 18th July 2013, the adjudicator concluded that the Board has no jurisdiction to consider the appellant’s application.

4. In accordance with his entitlement to do so under s. 100 of the Act, the appellant submitted an appeal against that decision to the Tribunal on the 21st August 2013. The Tribunal heard the appeal on the 3rd October 2014, at which hearing the appellant was represented by a solicitor. The Tribunal made its determination on the 6th October 2014, holding:

“The PRTB have (sic) no jurisdiction to hear the Appellant Tenant’s application in respect of the Dwelling at Butterfly Hill, Newcastle, County Wicklow.”
That is the decision, embodied in the determination of the Board made on the 18th October 2014, against which the appellant now appeals to this Court.
The jurisdiction on appeal
5. Section 123 of the Act states in relevant part:

“(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.
(4) The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive.”

The point of law raised
6. In mounting the present appeal, the appellant, who is a litigant in person for the purpose of these proceedings, relied initially on a notice of motion, dated the 19th December 2013, in which the relief sought was “an order appealing the whole of the determination of [the Board] given on the 18th October 2013.” That application was grounded on an affidavit sworn by the appellant on an unspecified date in December 2013, enumerating eight separate errors of law that he was then alleging had been made by the Tribunal in its determination of his case. In the same affidavit, the appellant also averred to various facts that he obviously considers would, if accepted, support his contention that the Board does have jurisdiction to entertain his application. The report of the Tribunal is exhibited to the appellant’s affidavit.
7. However, in what the appellant has termed a “supplementary” notice of motion dated the 14th February 2014, grounded upon a supplemental affidavit that the appellant swore on the 12th February 2014, he now identifies the point (or points) of law that he wishes to raise on appeal in the following terms:

“The Private Residential Tenancies Board Tribunal misinterpreted section 3(2)(g) of the Residential Tenancies Act 2004, and The Tribunal and Chairman employed unfair procedures during the hearing of the matter between [the appellant] and [the landlord].”
8. It may be that, in now identifying the points of law he wishes to raise in the manner just described, the appellant is, or has become, aware of the requirements of Order 84 C, rule 2(3), of the Rules of the Superior Courts whereby, in an appeal on a point of law, the motion must “state concisely the point of l aw on which the appeal is made.” Certainly, there would have been an obvious difficulty in attempting to deal with the appeal on the basis of the original notice of motion. Indeed, the statement of opposition, delivered on the 27th February 2014 by the Board, pleads, amongst other things, that the appellant has failed to comply with the provision of the rules just cited. Perhaps by reference to the terms of the “supplemental” notice of motion that the appellant now seeks to rely upon, I did not understand the Board to press that point in argument on this appeal. However, it does seem to me to follow that the only points of law properly before the Court in accordance with the Rules are those identified in the appellant’s “supplemental” notice of motion, dated the 14th February 2014
9. In its statement of opposition, the Board joins issue with the appellant in respect of each of the two points of law that he now identifies (and, perhaps for the avoidance of doubt, also in respect of the eight separate legal issues averred to in the appellant’s original grounding affidavit). That statement of opposition is grounded on an affidavit of Dervla Quinn, sworn on the 21st February 2014. Ms Quinn was the Chairperson of the Tribunal the determination of which is under appeal. Ms Quinn has exhibited the following documents: the appellant’s original application form for dispute resolution; the adjudicator’s report on that application; the appellant’s appeal form to the Tribunal from that decision; and a copy of the transcript of the hearing of that appeal before the Tribunal on the 3rd October 2013.

10. While a memorandum of appearance has been entered on her behalf, the landlord has taken only a limited part in this appeal.
The determination under appeal
11. From the terms of the Tribunal’s report and from the evidence before this Court, a number of background facts emerge that I do not understand to be in dispute between the parties. The landlord, a widow, owns the property at Butterfly Hill and resides in it. The landlord operates a bed and breakfast business there and offers rented accommodation in the property also. The appellant became a tenant in the property about 9 years prior to the Board’s determination. The appellant now occupies a different bedroom and kitchen area than that which he originally moved into. The appellant pays a weekly rent of €90 and has paid a deposit of €80.

12. Section 3, ss. 1 of the Act provides that it applies “to every dwelling, the subject of a tenancy.” By way of derogation from that provision, s. 3, ss. 2(g) of the Act states as follows (in relevant part):

“(2) … this Act does not apply to any of the following dwellings­
(g) a dwelling within which the landlord also resides”

13. Under s. 4, ss. 1 of the Act, for the purpose of s. 3, ss. 2(g) of the Act, “dwelling” is defined to mean (in relevant part) “…a property let for rent or valuable consideration as a self-contained residential unit and includes any part of a building used as a dwelling.”
14. The only guidance provided by the Act in respect of the meaning of the term “self­ contained residential unit” is that set out in s. 2, ss. 1 whereby it is defined to include “the form of accommodation commonly known as ‘bedsit’ accommodation.”

15. In the penultimate section of its report, headed “Findings and Reasons”, the Tribunal found as follows:

“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.
Finding: The agreement between the Landlord and the Tenant is not for the rent of a self contained unit within the meaning of the Act. The Landlord although accessing the Dwelling through a separate entrance had full access to and use of the entire of the Dwelling excluding only the Tenant’s bedroom. Section 3(2)(g) of the Act states that the Act does not apply to a dwelling within which the landlord also resides.

Reasons

The tenant had access to and the use of a kitchen and dining area but this use was not exclusive and was shared by the other tenant and in particular by the Landlord who carried out the cleaning of all areas herself excluding only the Tenant’s bedroom. The Landlord made use of the dining room for her B&B business and the sitting room for carrying out her work. The Tenant had a key to his bedroom which was personal to him but all other areas of the Dwelling are shared with the Landlord, another tenant and guests of the B&B business. The Tribunal notes that the Dwelling is a large building and separate entrances are used by the Landlord and the Tenant but notwithstanding this the Landlord does have access to and in fact used all areas of the Dwelling excluding only the Tenant’s bedroom. The decision of the Tribunal in Zang and Holohan TR168/2011, although informative on the question of what constitutes a self-contained unit, concerns a letting where the landlord was not ordinarily resident in the Dwelling. In this matter the Tribunal is satisfied that the Landlord is in fact also resident in the Dwelling which brings the matter outside of the jurisdiction of the PRTB pursuant to section 3(2)(g).”

The basis of appeal
16. In the case of Ashford Castle v. SIPTU [2007] 4 IR 70, the High Court had to consider the nature and scope of its jurisdiction in an appeal on a point of law from an expert tribunal. Clarke J. began his conspectus of the authorities in that regard by citing the following passage from the judgment of Hamilton C.J. in Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare [1998] 1 IR 34 (at pp. 37-8):
“…the courts should be slow to interfere with the decision of an expert administrative tribunal. Where conclusions are based on an identifiable error of law or an unsustainable finding of fact by a tribunal such conclusions must be corrected. Otherwise it should be recognised that tribunals which have been given statutory tasks to perform and exercise their functions, as is now usually the case, with a high degree of expertise and provide coherent and balanced judgments on the evidence and arguments heard by them it should not be necessary for the courts to review their decisions by appeal or judicial review.”
17. Later in his judgment in the same case, Clarke J. quoted with approval the following passage from the judgment of Gilligan J. in Electricity Supply Board v Minister for Social Community and Family Affairs [2006] IEHC 59, (Unreported, High Court, 21st February 2006)(at p. 30):
“I take the view that the approach of this court to an appeal on a point of law is that findings of primary fact are not to be set aside by this court unless there is no evidence whatsoever to support them. Inferences of fact should not be disturbed unless they are such that no reasonable tribunal could arrive at the inference drawn and further if the court is satisfied that the conclusion arrived at adopts a wrong view of the law, then this conclusion should be set aside. I take the view that this court has to be mindful that its own view of the decision arrived at is irrelevant. The court is not retrying the issue but merely considering the primary findings of fact and as to whether there was a basis for such findings and as to whether it was open to the appeals officer to arrive at the inferences drawn and, adopting a reasonable and coherent view, to arrive at her ultimate decision.”
18. Clarke J. went on to acknowledge the many other decisions to a similar effect- e.g. Faulkner v. Minister for Industry and Commerce (Unrepo1ied, High Court, Murphy J., 25th June 1993) and Brides v. Minister for Agriculture [1998] 4 IR 250. As Clarke J. noted, these cases form part of a strong line of authority going all the way back to the decision of the Supreme Court in Mara v. Hummingbird Ltd [1982] I.L.R.M. 421. That appeal arose from a case stated by the Income Tax Appeal Commissioners to the High Court, whereby the Commissioners determined that the profit derived from the sale of a property by a development and investment company was liable to capital gains tax as the realisation of an investment rather than to income tax as a sale undertaken as an adventure in the nature of trade. Speaking for the Supreme Court in a celebrated passage, Kenny J. stated (at p. 426 of the report):
“A case stated consists in part of findings on questions of primary fact, e.g. with what intention did the taxpayers purchase the Baggot Street premises. These findings on primary facts should not be set aside by the courts unless there was no evidence whatever to support them. The commissioner then goes on in the case stated to give his conclusions or inferences from these primary facts. These are mixed questions of fact and law and the court should approach these in a different way. If they are based on the interpretation of documents, the court should reverse them if they are incorrect for it is in as good a position to determine the meaning of documents as is the commissioner. If the conclusions from the primary facts are ones which no reasonable commissioner could draw, the court should set aside his findings on the ground that he must be assumed to have misdirected himself as to the law or made a mistake in reasoning. Finally, if his conclusions show that he has adopted a wrong view of the law, they should be set aside. If however they are not based on a mistaken view of the law or a wrong interpretation of documents, they should not be set aside unless the inference which he made from the primary facts were ones that no reasonable commissioner could draw. The ways of conducting business have become very complex and the answer to the question whether a transaction was an adventure in the nature of trade nearly always depends on the importance which the judge or commissioner attaches to some facts. He will have evidence some of which supports the conclusion that the transaction under investigation was an adventure in the nature of trade and he will have some which points to the opposite conclusion. These are essentially matters of degree and his conclusions should not be disturbed (even if the court does not agree with them, for we are not retrying the case) unless they are such that a reasonable commissioner could not draw them or they are based on a mistaken view of the law.”
19. These principles were helpfully restated by the High Court (per McKechnie J.) in John Deely v. The Information Commissioner [2001] 3 IR 439 in the following terms (at p. 452):
“There is no doubt but that when a court is considering only a point of law, whether by way of restricted appeal or via a case stated, the distinction in my view being irrelevant, it is, in accordance with established principles, confined as to its remit, in the manner following:-
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;

(b) it ought not to set aside inferences drawn form such facts unless such inferences were ones which no reasonable decision making body could draw;

(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;

(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that is also a ground for setting aside the resulting decision: see for example Mara v. Hummingbird Ltd. [1982] 2 I.L.R.M. 421, Henry Denny & Sons (Ireland) Ltd v. Minister for Social Welfare [1998] 1 IR 34 and Premier Periclase v. Commissioner of Valuation (Unreported, High Court, Kelly J., 24th June 1999).”

20. In considering this aspect of the law, it remains only to note that, in Canty v. Private Residential Tenancies Board [2007] IEHC 243, (Unreported, High Court, 8th August 2007), which in common with the present case was an appeal by way of case stated under s. 123, ss. 3 of the Act, Laffoy J. expressly identified the apposite principles as those set out in Mara v. Hummingbird Ltd and Henry Denny & Sons (Ireland) Ltd v. Minster for Social Welfare. I respectfully agree with that conclusion.
The appropriate evidence to consider
21. Having established the nature and scope of the present appeal, it will at once be evident that it is no part of the function or role of this Court in that regard to purport to consider afresh the jurisdictional issue that was determined at first and second instance by the adjudicator and the Tribunal respectively. That is because it is impossible to reconcile such an approach with the application of the principles identified in the preceding section of this judgment. Simply expressed, albeit in legal parlance, this is not an appeal de novo; it is a restricted appeal on a point of law.

22. That observation leads, in turn, to a consideration of the question whether it is appropriate to receive any further or additional evidence on that jurisdictional issue in the context of the present appeal. The question arises because the appellant deposes to the merits of that issue at some considerable length in both the first affidavit and, more particularly, the second affidavit that he swore for the purpose of the present appeal. While many of the relevant averments might more properly be characterised as argument than evidence (and would, of course, be inappropriate as such), at least some of them are plainly intended to be the latter. One averment in particular, in the appellant’s second affidavit, states that “the Appellant Deponent hopes to be able to procure an accurate plan of the premises from Wicklow County Council Planning Department in the near future and begs leave to submit it when he can.” The appellant did indeed produce such a plan to the Court in the course of the hearing.

23. In the case of Ashford Castle Ltd v. SIPTU to which I have already referred, one of the issues that Clarke J. had to address was an attempt by the appellant in that case to exhibit a chart or table that it was claimed was derived from materials that had had been before the Labour Court when it had made the decision then under appeal on a point of law. The appellant in that case wished to argue that the exhibit concerned helped to demonstrate that there was no evidence to support a particular component of the Labour Court’s decision. Clarke J. recorded that, in the course of the hearing of the appeal before the High Court, it became apparent that the relevant chart or table contained significantly misleading information that did not, in fact, accurately reflect the material that had been before the Labour Court.

24. In commenting on that aspect of the appeal, Clarke J. stated (at p. 90 of the report):

“59 The exercise also shows the extreme danger of permitting any materials other than those which were before the statutory body in question to be introduced at an appeal. Indeed it provides a strong argument for a return to the procedure advocated by Finlay C.J. in Bates v. Model Bakery Ltd [1993] 1 I.R. 359 which sought to confine the evidence to an affidavit which exhibited only the materials which were before the body in question and the determination of that body and excluded any additional matter. It does not appear to me to be appropriate for affidavits filed either in support of or against appeals of this type to include any additional materials whether by way of argument or background.”
25. In Model Bakery Ltd, Finlay C.J. had expressed the view (at pp. 364-5 of the report), though perhaps obiter, that the special summons in that case (brought under s. 39 of the Minimum Notice and Terms of Employment Act 1973), equivalent to the notice of motion in the present appeal, should simply have stated the decision being appealed against, the question of law which it was suggested was in error, and the grounds of the appeal, and that it should be supported only by an affidavit or affidavits exhibiting the determination appealed against, including any findings of fact or recital of evidence made by the relevant tribunal, and, in effect, identifying the parties and the grounds on which the aggrieved party was seeking a determination of a question of law.
26. I share the view expressed by Clarke J. that it is not appropriate for affidavits filed either in support of or against appeals of this type to include any new or additional materials, whether by way of argument or background, and I do not propose to consider any such material for the purpose of the present appeal.
The first point of law raised
27. Having established the appropriate legal framework within which the present appeal must be considered, I turn now to deal with the first point of law that the appellant has raised. The appellant contends that the Tribunal misinterpreted s. 3, ss. 2(g) of the Act.

28. Insofar as I can ascertain, this argument derives from, or is inextricably bound up with, the assertion that the Tribunal either misinterpreted or misapplied its own earlier decision in the case of Zhang v. Holohan (17th January 2012, Reference No. TR168/2011/DR92/2011). In that case, the patties were in agreement concerning the following essential facts: the property at issue was a two-bedroom apartment; the tenant had exclusive occupation of one bedroom and non-exclusive occupation of the common areas (in that she shared them with the other tenant); and that the only period during which the landlord had occupied the premises was for a period of three nights after the parties fell into dispute.

29. While the landlord in that case gave evidence that the apartment had previously been his home and while it was agreed that the landlord had resided in the apartment for one period of three nights after the parties fell into dispute, the Tribunal noted that the landlord did not press the argument that the apartment comprised a dwelling within which the landlord was also residing, thereby taking the dwelling outside the scope of the Act by operation of s. 3, ss. 2(g). Nevertheless, in light of the landlord’s claim that all of his possessions were in the apartment, the Tribunal did go on to briefly address that point. In doing so, it recorded its finding, as a matter of fact, that the landlord stayed in the dwelling for only three nights during the 16 month duration of the tenancy at issue. By reference to that finding, the Tribunal expressly rejected the landlord’s claim that he also resided in the dwelling and that, in consequence, the tenant’s claim fell outside the scope of the Act.

30. The primary jurisdictional issue considered by the Tribunal in Zhang v Holahan was the landlord’s argument that the property concerned fell outside the scope of the Act because it was not a “dwelling”, as that term is defined under s. 4, ss. 1 of the Act, on the basis that it was not “a self-contained residential unit”.

31. In its decision in Zhang v. Holohan, the Tribunal held itself bound to give the term “self-contained residential unit” its ordinary and colloquial meaning, on the authority of the decision of the Supreme Court in Inspector of Taxes v Kiernan [1981] IR 117. In doing so, it concluded:

“It is the view of the Tribunal that the ordinary meaning of “self-contained” as regards a unit means-“containing within itself all parts necessary for completeness” or put another way “something which is complete on its own and doesn’t need anything else” or “constituting a complete and independent unit of itself.”
Consequently, a “self-contained’ residential unit must mean a unit which enables the person residing there to have all the essentials for living i.e. for sleeping, washing, cooking, toiletry and relaxing.”

32. Returning to the decision now under appeal the Tribunal’s conclusion on the arguments that were raised on the appellant’s behalf concerning the relevance and application of the decision in Zhang v. Holahan were that, although the Tribunal considered that case to be informative on the question of what constitutes a self­ contained residential unit, it was nevertheless a case that included a clear finding that the landlord was not residing in the dwelling at issue there.
33. Insofar as it may be argued that a consideration of the extent to which the appellant’s accommodation comprises a “self-contained residential unit” is a necessary element in considering the wider question of whether the landlord resides in that accommodation with the appellant, it is important to note that the facts of the present case (as found by the Tribunal) were quite different from the facts found or agreed in Zhang v. Holohan. At paragraph 15 of this judgment, I have already set out the Tribunals findings of fact in this case, and at paragraphs 28 and 29 I have described the much more straightforward facts that were agreed between the parties or found by the Tribunal in Zhang v. Holohan.

34. Even if l were persuaded that I should take a different view of the facts than the one reached by the Tribunal in this case (and I am not so persuaded), it is clear, by reference to the principles already considered, that it would be entirely wrong to do so.

35. That is because, as Gilligan J. put it in ESB v. Minister for Social Community and Family Affairs, supra, the Court’s own view of the decision arrived at is irrelevant. The court is not retrying the issue but merely considering the primary findings of fact and as to whether there was a basis for such findings and as to whether it was open to the Tribunal to arrive at any inferences drawn and, adopting a reasonable and coherent view, to arrive at its ultimate decision. I am satisfied that there was a basis in evidence for the Tribunal’s primary findings of fact; that it was open to the Tribunal to draw an inference from those facts that the notice party was residing within the same dwelling as the appellant for the purpose of s. 3, ss. 2(g) of the Act; and that it was open to the Tribunal, adopting a reasonable and coherent view, to arrive at its ultimate decision that it did not have jurisdiction under the Act to consider the appellant’s appeal.

36. Finally on this point, it is necessary to add that I have been unable to identify any error of law in the approach adopted by the Tribunal in this case. More particularly, I am satisfied that the Tribunal did not err in law in its interpretation (or application) of the provisions of s. 3, ss. 2(g) of the Act.
The second point
37. The second point of law relied upon by the appellant is his contention that the Tribunal and its Chairperson employed unfair procedures during the hearing of his case. Specifically, the appellant alleges that the Chairperson acted in breach of s. 170, ss. 1(c) of the Act and in breach of the principle “nemo iudex in causa sua” (that is, the principle that no one should be a judge in her own cause or, as it often described, the principle against bias).

38. Section 170, ss. (1)(c) of the Act requires various persons associated with the Board, including Tribunal members, to take no part in the consideration of a matter if the person concerned has a pecuniary interest or other beneficial interest in, or material to, that matter. Accordingly, it would appear that the appellant is asserting that the Chairperson of the Tribunal that heard his appeal had a pecuniary interest or other beneficial interest in, or material to, that appeal, such that she should have recused herself from hearing it.

39. The basis for this assertion, in so far as there is one, is set out in a single paragraph of the appellant’s first affidavit, in which he avers:

“The Tribunal Chairman Dervla Quinn is a member of the local community, and her address is… less than one and a half miles from Butterfly Hill where the Appellant Deponent resides, less than a mile from [an equestrian establishment owned by the landlord’s sister in law A], and in fact Dervla Quinn could be almost her next door neighbour, and less than five hundred yards from [the landlord’s sister in law Band her sons]. The Appellant Deponent has met the Tribunal Chairman at least once, if not more times in connection with her equestrian pursuits, prior to the Tribunal Hearing. The Chairman should have refrained from taking part in considering these matters under Section 170(1)(c) of the Act.”
40. At paragraph 19 of the affidavit that she swore on the 21st February 2014, Ms. Quinn responded to those averments in the following terms:
“…I say that I have never met [the landlord], have no recollection of ever meeting [the landlord’s deceased husband] or the Appellant, am unaware of the location of the rented dwelling and I was not aware that a neighbour of mine is a sister in law of the [landlord] until I had sight of the Grounding Affidavit of the Appellant.”
41. By reference to the evidence just described, I conclude that the appellant has failed to identify, much less establish, any pecuniary interest or other beneficial interest in, or material to, his appeal on the part of the Chairperson that would require her to take no part in the consideration of the matter. Accordingly, I am satisfied that the appellant has failed to establish any breach of s. 170, ss. 1(c) of the Act on the part of the Tribunal or its Chairperson.
42. As regards, the appellant’s allegation of bias on the part of the Chairperson and, by extension, the Tribunal in the consideration of his appeal, I must apply the accepted test in that regard, being that set out by the Supreme Court in Bula Ltd v Tara Mines Ltd (No. 6) [2000] 4 I.R. 412. It is whether the relevant facts would give rise to a reasonable apprehension of bias in a reasonable person. I am quite satisfied that neither the fact that the Chairperson lives in the same locality as the parties, nor the fact that a sister in law of one of the parties is a neighbour of the Chairperson, nor the fact that the Chairperson has an interest in equestrian pursuits in common with any relation of any of the parties, nor the fact that the Chairperson has previously encountered any of the parties (if that has occurred) is sufficient to give rise to a reasonable apprehension of bias in a reasonable person, whether those facts are considered individually or in combination. I conclude, therefore, that the appellant’s argument must fail on this point also.

43. For the sake of completeness I should add that it is evident from the transcript of the hearing before the Tribunal that no issue of bias (or breach of s. 170, ss. 1(c) of the Act) was raised on the appellant’s behalf by the solicitor who represented the appellant at that hearing. Were it necessary to do so, I would also be disposed to find that the appellant is not entitled to raise the issue of bias for the purpose of the present appeal, in circumstances where he failed to raise it before the Tribunal and there is no suggestion that the facts upon which he now seeks to rely (such as they are) were not within his knowledge at that time. That finding is based upon the doctrine of waiver, the rationale behind which was explained in the following way by Henchy J. in Corrigan v. Irish Land Commission [1977] I.R. 317 (at 326):

“The rule that a litigant will be estopped from raising a complaint as to bias when, with knowledge of all the relevant circumstances, he expressly or impliedly abandoned it at the hearing, is founded, I believe, on public policy. It would be obviously inconsistent with the due administration of justice if a litigant were to be allowed to conceal a complaint of that nature in the hope that the tribunal will decide in his favour, while reserving to himself the right, if the tribunal gives an adverse decision, to raise the complaint of disqualification. That is something the law will not and should not allow. The complainant cannot blow hot and blow cold; he cannot approbate and then reprobate; he cannot have it both ways”
44. Finally, in circumstances where it is unnecessary to do so, I express no view on the submission made on behalf of the Tribunal that the statutory procedure under s. 123, ss. 3 of the Act whereby a decision of the Tribunal can be appealed to this Court on a point of law is not the appropriate mechanism by which to seek to quash any such decision on grounds of bias.
Conclusionor the reasons set out above, this appeal on a point of law must fail.