Landlord’s Obligations

Cases

Allen v O’Ceallaigh

 

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0614-000681 / Case Ref No: 1213-09377
Appellant Landlord: Tom Allen
Respondent Tenant: Donall O Ceallaigh
Address of Rented Dwelling: Flat 4, 167 Inchicore Road, Inchicore, Dublin 8
Tribunal: John Tiernan (Chairperson)
Orla Coyne, Finian Matthews.
Venue: Tribunal Room, PRTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2.
Date & time of Hearing: 19 January 2015 at 10:30.
Attendees: Tom Allen, Appellant, Landlord.
Joe Brohoon, Agent Representative of Appellant
Landlord.
Donall O Ceallaigh, Respondent, Tenant.
In Attendance: Gwen Malone Stenographers.
1. Background:
On 10/12/2013 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 16/04/2014. The Adjudicator determined that I
determine that:
•The Respondent Landlord shall pay the total sum of €7,000 to the Applicant Tenant,
within 90 days of the date of the Order, being damages for the Respondents
Landlords breach of his obligations under the Act, in respect of the tenancy of the
dwelling at Flat 4, 167 Inchicore Road, Dublin 8.
•The Applicant Tenants application for unlawful termination of tenancy and illegal
eviction in respect of the tenancy of the dwelling at Flat 4, 167 Inchicore Road, Dublin
8, is not upheld.
•The Applicant Tenants application for standard and maintenance of dwelling in
respect of the tenancy of the dwelling at Flat 4, 167 Inchicore Road, Dublin 8, is
upheld.
•The Applicant Tenants application for breach of landlord obligations in respect of the
tenancy of the dwelling at Flat 4, 167 Inchicore Road, Dublin 8, is upheld.
Subsequently an appeal was received from the Landlord on 02/06/2014. The grounds of
the appeal being Standard and maintenance of dwelling. The Appeal was approved by
the Board on 06/06/2014
The PRTB constituted a Tenancy Tribunal and appointed John Tiernan, Orla Coyne,
Finian Matthews 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”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 19/01/2015 the Tribunal convened a hearing at Tribunal Room, PRTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2, Dublin.
2. Documents Submitted Prior to the Hearing Included:
PRTB File
3. Documents Submitted at the Hearing Included:
Submitted on behalf of the Appellant Landlord:
1) A schedule of his assessment of rent arrears.
2) Copy correspondence dated 31st January 2014 from Brohoon & Associates to the
Respondent Tenant.
3) Copy correspondence dated 14th February2014 from Brohoon & Associates to the
Respondent Tenant.
4) Copy correspondence dated 14th March 2014 from Brohoon & Associates to the
Respondent Tenant.
5) Copy document dated as served on 16th April 2014 purporting to be a 14 Day
Warning Notice in respect of the tenancy for purported failure to pay rent.
6) Copy of document dated as served on 1st May 2014 purporting to be a Notice of
Termination.
7) Copy of correspondence from Dublin City Council dated 14th October 2014
confirming that the requirements of the prohibition notice in relation to the dwelling dated
10th May 2013 have been complied with.
4. Procedure:
The Chairperson asked the Parties present and their witnesses 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”. He
explained the procedure which would be followed; that the Tribunal was a formal
procedure but that it would be conducted in a manner that would be as informal as was
possible. He said that members of the Tribunal might ask questions of both Parties from
time to time.
The Chairperson explained to the parties that in the event that agreement is reached
between them the terms of any such agreement can be incorporated in to a determination
of the Tribunal and thus become enforceable through the Courts.
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 or up to 6 months imprisonment or both.
He 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 enforced
by either of the Parties or in some cases by the Board of the PRTB at its discretion. He
also advised the parties that the Tribunal process was the final step in the dispute
resolution process unless appealed to the High Court on a point of law only [reference
section 123(3) of the 2004 Act].
He asked the Parties if they had any queries about the procedure.
The parties intending to give evidence were sworn in.
At the outset the Respondent tenant averred that he had not received the Tribunal Case
File from the PRTB. He said that he had notified the executive of the PRTB on two
occasions that he had changed address and thought that this may have been the cause
for such omission. Noting the fact that all documents on the file except the Appellant
Landlord’s statement of Appeal had already been in the possession of and known to the
Respondent Tenant the Tribunal provided a fresh copy of the full file to the Respondent
Tenant and adjourned for a period of 15 minutes in order to allow him to be familiar with
any new contents.
During the course of the resumed hearing the Respondent Tenant confirmed his new
address to the Tribunal and the Chairperson confirmed that he had personally checked
the post tracking records of the PRTB and noted that the Case File documents had been
forwarded on two occasions to the new revised address as had been provided by the
Respondent Tenant. When this was put to him the Respondent Tenant said that he didn’t
know why he never received it.
5. Submissions of the Parties:
The Appellant Landlord’s Case:
The Appellant Landlord’s Agent said that the tenancy commenced in May 2011. He said
that the case is set against a background of rent arrears which up to 30th June 2014
amounted €9,750 and that they were appealing the award of €7,000 against the Appellant
Landlord. He adduced a typed tabulation of rent payments and arrears to support his
contention on rent arrears which commenced in or around January 2012 and that rent
payments had ceased entirely in January 2013. He pointed out that the arrears sum of
€9,750 was based on a rent of €416 per month.
The Appellant Landlord’s Agent said that he is a personal friend of the Appellant Landlord
and is separately engaged in the property letting business. He gave evidence that he had
been consulted by the Appellant Landlord whom he agreed to assist on occasions in
regard to this tenancy since October 2012 and was familiar with and a witness to the
events that he would describe. He said that latterly in January 2014 he was assigned the
role of Agent which role was duly notified to the Respondent Tenant in the letter adduced
in evidence setting out the rent arrears and requesting a key to the dwelling. He said that
the Respondent Tenant had not replied to this correspondence. He said that he had
consulted the files of the previous Letting Agent.
The Appellant Landlord’s Agent said that at some point following commencement of the
tenancy the Respondent Tenant changed the lock on the door to the dwelling and refused
to give a copy of the new key to the Appellant Landlord which had been requested
through his then Letting Agents. This evidence was confirmed by the Appellant Landlord.
He said that access for repair and any other purposes was thus denied. The Appellant
Landlord’s Agent gave further evidence that both he and the Appellant Landlord met with
the Respondent Tenant outside the dwelling in October 2013 and had requested a key to
the dwelling from him which request he said was not acceded to. He said that on that
occasion the Respondent Tenant who had a local public representative with him allowed
access to view the alleged water problem in the kitchen and electrical problems. He said
that immediately following this some repairs were carried out including refitting of the
shower door and replacement of the under-sink water heater.
The Appellant Landlord’s Agent said that in late October early November 2012 Dublin
City Council had issued a Prohibition Notice citing the requirement to address issues of
dampness and electrical installation variously in relation to all 4 dwellings in the building
including the subject dwelling. He said that despite being able to gain access to the other
3 apartments in the building to effect repairs and rectify the problems they could not
access the subject dwelling. He said that despite making contact through email and/or
telephone with the Respondent Tenant over and over again on all occasions he had
refused access. He further described how the repairs to the other 3 dwellings were
completed and accepted by the Housing Authority but due to access difficulties nothing
further could be done in respect of the subject dwelling.
The Appellant Landlord’s Agent said that arising from the Prohibition Notices received in
relation to the development including all 4 apartments it took some months to organise
contracts and procure a contractor as well as arrange for alternative accommodation for
in particular the Respondent Tenant to have the necessary work carried out. However
difficulties arose in respect of gaining access to the subject dwelling for a final inspection
but that the other 3 apartments were given clearance during 2013. However the Appellant
Landlord’s Agent submitted evidence and documentation to the effect that it was only
following an inspection in September 2014 when the Appellant Landlord had taken
possession of and the Respondent Tenant was no longer residing in the dwelling that the
Prohibition Notice issued by the Housing Authority was removed by Order dated 14th
October 2014 in relation to the dwelling.
The Appellant Landlord said that he had known nothing of and did not instruct his then
Agents in regard to an alleged phone call on 10th December 2013 stated to have been
received by the Respondent Tenant threatening to have him evicted the following week.
The Respondent Tenant’s Case:
The Respondent Tenant gave evidence that the only repairs that were carried out to the
dwelling were undertaken in June/July 2013 during which time he was provided with
alternative accommodation in an hotel at the expense of the Appellant Landlord for 10
days. He averred that references to any other work having been undertaken on behalf of
the Appellant Landlord amounted to untruths. He said that workmen had not called to his
door. In response to a query from the Tribunal relating to the evidence provided on behalf
of the Appellant Landlord and telephone contact to arrange access, he said that he could
not remember.
The Respondent Tenant said that all of his files relating to the case had been taken when
the Appellant Landlord had removed his items from the dwelling on the occasion on 13th
August 2014 and had brought them to the Garda Station. When asked as to what efforts
he had undertaken to retrieve these files in the context of the current case he said that his
solicitor had advised him not to retrieve any such items because they had been
wrongfully removed from the dwelling.
The Respondent Tenant said that there was rising damp in the wall and floor of the
dwelling. He said that the dampness returned after the work had been undertaken on
behalf of the Appellant Landlord. He further described that electrical problems that arose
in the latter part of the tenancy meant that he had to boil kettles of water in the sitting
room rather than in the kitchen. He said that rising dampness can be very bad for one’s
health. When asked to describe the overall impact the condition of the dwelling had on
him he said that most of the time he wouldn’t be there and but that it resulted in his
staying away from the dwelling and going to the pub or for a walk.
The Respondent Tenant denied that he had changed the locks and said that the builders
had done so in June 2013. In response to a query relating to the averments of the
Appellant Landlord’s Agent and the letter he had issued in January 2014 seeking a key
he said that he could not contact either the Appellant Landlord or his Agent 95% of the
time and that that he went to the Appellant Landlord’s Agent’s Office it was always
closed. He said that he did not think to leave a note or send an email.
The Respondent Tenant said that the fridge in the dwelling was not working for a period
of a couple of weeks in the latter part of the tenancy and that he had got rid of it and that
he had intended to replace it himself. He said that he did not report this matter to the
Appellant Landlord’s Agent because of the difficulties he had with communicating with
him.
The Respondent Tenant said that the tabulation of rent arrears as submitted by the
Appellant Landlord’s Agent was something that anybody could fabricate. He said that
there were no signatures or independent verifications on the document. He said that he
had stopped paying rent when it was agreed between himself and an official in the
Department of Social Protection that he should withhold the rent from the Appellant
Landlord. He confirmed that he had no evidence that this had happened. He further
averred that the monthly rent was €529 which is actually higher than the €416 that is
shown in the tabulation. In response to a query from the Tribunal he said that he could
not assess the rent arrears that have accumulated and that in any case he should not
have to pay rent on a dwelling that was not up to standard.
6. Matters Agreed Between the Parties
None
7. Findings and Reasons:
Based upon the evidence provided and based on the balance of probabilities the Tribunal
has made the following findings:
Finding No.1:
The Appellant Landlord was not in breach of his obligations in respect of the standard of
maintenance of the dwelling at prescribed under the Act of 2004.
Reason:
Under the provision of s.12(1)(b) of the Act a landlord is obliged to carry out to – (i) the
structure of the dwelling all such repairs as are, from time to time, necessary and ensure
that the structure complies with the standards for houses for the time being prescribed
under section 18 of the Housing (Miscellaneous Provisions) Act 1992, and (ii) the interior
of the dwelling all such repairs and replacement of fittings as are, from time to time,
necessary so that the interior and those fittings are maintained in, at least, the condition in
which they were at the commencement of the tenancy and in compliance with any such
standards for the time being prescribed.
The Tribunal notes that the obligations under the Act of 2004 relate firstly to the carrying
out of such works as are from time to time necessary. The Tribunal is of the view that it is
not necessarily the case under this obligation that a transgression of the standards as
prescribed under the Act of 2004 arises through a failure to comply with the prescribed
standard per se, which failure may or may not be a matter for the Housing Authority to
police and administer in accordance with its own practices and remit, but rather a failure
to ‘carry out’ any such repair/replacement and ensure compliance with the standard once
a transgression of the standard has manifested itself. The Tribunal accepts the evidence
of the Appellant Landlord that he set about the task of executing the required repairs as
identified by the Housing Authority but that he was prevented in carrying out such repairs
through the actions or inactions of the Respondent Tenant in his having changed the
locks to the dwelling and in his unreasonable or inadequate responses to requests from
the Agent of the Appellant Landlord and of his workmen for entry in order to effect such
repairs. The Tribunal accepts the evidence of the Agent of the Appellant Landlord in
regard to repeated unsuccessful attempts to gain entry. The Tribunal also accepts the
evidence of the Appellant Landlord that the other three dwellings in the building were
repaired and received clearance from the Housing Authority some 6 months prior to the
works in the dwelling the subject of these proceedings.
There was a conflict of evidence in relation to which party was responsible for altering of
the locking system on a door giving entry to the dwelling. The Tribunal accepts the
evidence of the Appellant Landlord and of his Agent in regard to this matter that the lock
was altered and keys withheld by the Respondent Tenant in contravention of his tenant’s
obligations under the provisions of s.16(l) and 17(1)(a) of the Act of 2004. The Tribunal
has also taken account of the fact that the repairs that were required which involved
installation of new concrete floors to replace the old timber floors were substantial and
that when access was finally agreed it was necessary to arrange alternative
accommodation for the Respondent Tenant in a city centre hotel for 10 days.
In regard to matters of alleged further transgressions of the Act under s. 12(1)(b)
subsequent to January 2014, through electrical failures and faulty sockets the Tribunal
accepts the evidence of the Appellant Landlord’s Agent that these matters were not
brought to the attention of the Appellant Landlord or his Agent at the material time.
Finding No.2:
The Respondent Tenant’s claim for damages arising from alleged breach of the Appellant
Landlord’s obligations under s. 12(1) (b) of the Act of 2004 is not upheld.
Reason:
Having regard to the conclusions of Finding No. 1 above to, the effect that no breach
occurred in respect of the Appellant Landlords obligations under the Act of 2004, the
Tribunal considers that no damages are due to the Respondent Tenant in this regard.
Finding No.3:
The Respondent Tenant’s claim in respect of unlawful termination in December 2013 is
not upheld.
Reason:
The Tribunal considers that the Appellant Landlord did not terminate or attempt to
terminate the tenancy in contravention of s. 58 of the Act of 2004 by means of a notice of
forfeiture, re-entry or any other process not provided in Part 5 of the Act of 2004 in the
period around December 2013 .
The Tribunal considers that the Respondent Tenant failed to present sufficient evidence
to establish that any such event or threatened event occurred. The Tribunal accepts the
evidence of the Appellant Landlord that he knew nothing of any such telephone call and
did not issue any such instruction to his then Agent to make any such telephone call.
8. Determination:
Tribunal Reference TR0614-000681
In the matter of Tom Allen (Landlord) and Donall O Ceallaigh (Tenant) the Tribunal
in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
1. The Respondent Tenant’s claim in respect of breach of the Appellant Landlord’s
obligations under the provisions of s. 12(1)(a) & (b) of the Act of 2004 is not upheld in
respect of the tenancy of the dwelling at Flat 4, 167 Inchicore Road, Inchicore, Dublin
8.
2. The Respondent Tenant’s claim in respect of unlawful termination in December
2013 is not upheld.
The Tribunal hereby notifies the Private Residential Tenancies Board of this
Determination made on 12/02/2015.
Signed:

 

 

Byrne v Gannon & Mulhern

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001717 / Case Ref No: 0216-24457
Appellant Landlord: John Byrne
Respondent Tenant: Ciara Gannon, Eoin Mulhern
Address of Rented Dwelling: 20 Michael Street , Kilkenny, R95TAA8
Tribunal: Nesta Kelly (Chairperson)
Gene Feighery, Thomas Reilly
Venue: Conference Room, Dept of Environment,
Community and Local Government, Newtown
Road, Wexford
Date & time of Hearing: 09 June 2016 at 11:00
Attendees: Ciara Gannon (Respondent Tenant)
Eoin Mulhern (Respondent Tenant)
John Byrne (Appellant Landlord)
In Attendance: DTI Stenographers/Loggers
1. Background:
On 24 February 2016 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 30 March 2016. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €1,000 to the Applicant Tenant,
within 14 days of the date of issue of this Order, being the balance of the unjustifiably
retained security deposit of €750 with damages of €250 for its unlawful retention, in
respect of the tenancy of the dwelling at 20 Michael Street, Kilkenny.
Subsequently the following appeal was received from the Landlord on 13 April 2016. The
grounds of the appeal are Damage in excess of normal wear and tear, Rent arrears,
Breach of tenant obligations and Breach of fixed term lease. The appeal was approved by
the Board on 19 April 2016
The RTB constituted a Tenancy Tribunal and appointed Gene Feighery, Nesta Kelly,
Thomas Reilly as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Nesta Kelly to be the chairperson of the Tribunal (“the Chairperson”).
On 09 May 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 09 June 2016 the Tribunal convened a hearing at Conference Room, Dept of
Environment, Community and Local Government, Newtown Road, Wexford.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson 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 Respondents; that the
Respondents would then be invited to present their case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath of affirmation and be
recorded by the official stenographer present and she reminded the Parties that
knowingly providing false or misleading statements or information to the Tribunal was an
offence punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The Parties were then sworn in.
5. Submissions of the Parties:
Appellant Landlord’s Case:
The Appellant Landlord described the dwelling as a three bedroomed, two storey, end of
terrace, structurally sound house which was built in circa 1940/50. He said he lived next
door. He said that the Tenants had signed a 12 month fixed term lease with his Agent
which they permanently terminated and he said that they had caused damage to the
dwelling over and above normal wear and tear and that was why he was retaining the
deposit. He said that all matters relating to the tenancy were being handled directly by his
agents and the first he knew that the Tenants were leaving after 7 months was when he
saw one of the Tenants loading belongings into a car. He said was claiming €200 for a
top up to the central heating oil tank and a receipt was produced in this respect.
He further sought to claim €300 for replacement carpet to the stairs and landing which
was verified by a receipt. He said that on inspecting the dwelling at the end of the tenancy
he found the carpet to be in a dirty state and although he had engaged a cleaning
company, they could not guarantee that it could be cleaned satisfactorily and so it was
necessary to buy a new carpet. He could not provide a receipt from the cleaning company
to verify this fact. He said the old carpet was 2 years old when the present tenancy
commenced.
He was also claiming €580 for painting work as he said the Tenants had damaged the
paint work on the stairs by moving keep fit equipment and further there was evidence of
damp and mould in the rooms which he alleged was caused by the failure of the Tenants
to heat the property adequately. He could not provide any receipts to corroborate this
claim and relied on photographs produced in the RTB case files in support of this claim.
He said that vents had been blocked by the Tenants and that they failed to open windows
to allow air into the house which contributed to the presence of damp and mould in the
dwelling and in particular he referred to photographs of a sitting room which had to be
repainted as dry lining had come off the walls due to dampness and blocked vents and
the Tenants failure to properly heat the house.
On being questioned by the Tribunal as to the BER rating of the dwelling, he said he did
not have evidence of this, but guessed it was “a G rating” he said the house was built in
the 1940’s.
He agreed that he had no knowledge of any dealings the agent had with the Tenants as it
was a full management contract, and he accepted that it was a matter between himself
and his agent that he had not been informed of the Tenants notice of Termination given to
his agent on 28th September 2015. He confirmed that on meeting one of the tenants
when he was vacating the dwelling, he had not raised the matter of the early termination
of the tenancy or had given the Tenants an opportunity to rectify matters that were later
raised by him; he said had bought a table from the Tenant for €130, but this amount was
challenged by the Tenants who said it was only €40 which represented half of the original
cost.
Respondent Tenant’s Case
They said that when the lease was signed by the agent they were told that despite the
fact that the standard lease stated it was for a period of 12 months; that the term was
flexible and that there would be no issue in the event of an early termination of the
tenancy. They said that the house was very cold due to the faulty heating system and that
they therefore only used the central heating system for about 3 days; they had reported
this to the agent on a number of occasions, however nothing was done to rectify this fault.
With regard to the claim by the Appellant Landlord for replacement central heating oil
amounting to €200, they said that as the system was faulty they had not used any oil.
They stated that at the commencement of the tenancy the carpet on the stairs and
landing was already worn and ingrained with dirt as evidenced by their photographs and
that said there were no vents in the dwelling apart from the one in the bathroom and they
rejected the Landlords assertion that they had blocked the vents. The Tenant Ms Gannon
said that when they were leaving, the Landlord had approached her to say that he was
sorry they were leaving as they had been good Tenants. In relation to the damage to the
paintwork on the stairs, they said that it was not caused by moving gym equipment as
alleged by the Landlord: but that they had to buy a new bed as the one provided by the
Landlord was broken, and the paint work had chipped by moving this bed into the
dwelling. They had offered to get the Tenants brother who was a professional painter to
rectify this paintwork, but said that the Landlord had rejected this offer. They had suffered
hardship by the with-holding of the deposit as they had to borrow money from relatives
and from the Tenants business.
6. Matters Agreed Between the Parties
1. The tenancy commenced on 9 March 2015
2. The rent was €750 per month
3. A deposit of €750 was paid which is retained by the landlord
4. The tenancy ended on 9th November 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 Tribunals findings and reasons are set out hereunder.
7.1 Finding:
The Tribunal finds that the Appellant Landlord is not justified in withholding the Tenants
security deposit as his claim for damage to the dwelling in excess of normal wear and
tear, namely; the purchase of central heating oil, replacement carpets and painting and
redecoration costs is not upheld.
Reasons:
1. There was a direct conflict of evidence between the Parties, and on the balance of
probabilities, the Tribunal accepts the veracity of the Respondent Tenants evidence in
this respect.
2. The Landlord did not provide any corroborative evidence apart from photographs to
justify his claim of €580 in respect of painting costs and refused to allow the Tenants an
opportunity to rectify any damage caused.
7.2 Finding:
The Tribunal finds that the Appellant Landlord was in breach of his obligation under
Section 12(d) of the Residential Tenancies Act 2004 arising from his failure to promptly
return to the Tenants the entire of their security deposit in the sum of €750, and thus
awards the Respondent Tenants damages in respect of this breach, and considers that
the amount of €500 is the appropriate sum to recompense the Respondent Tenants in
respect of this breach of Landlord obligation.
Reasons:
1. The Tribunal is satisfied on the evidence presented before them; that the Tenants
suffered loss and hardship in securing new accommodation in respect of this breach.
2. Section 115 (d) of the Residential Tenancies Act 2004 applies in this respect.
8. Determination:
Tribunal Reference TR0416-001717
In the matter of John Byrne (Landlord) and Ciara Gannon, Eoin Mulhern (Tenant)
the Tribunal in accordance with section 108(1) of the Residential Tenancies Act
2004, determines that:
That the Appellant Landlords shall pay the total sum of €1,250 to the Respondent
Tenants within 14 days of the issue of this Order, being the entire amount of the
unjustifiably retained security deposit of €750 together with damages of €500.
In respect of the tenancy of the dwelling at 20, Michael Street, Kilkenny, R95TAA8
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
11 June 2016.
Signed:
Nesta KellyChairperson
For and on behalf of the Tribunal.

 

Carr v Buttle

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR08e15-001320 / Case Ref No: 0615-19098
Appellant Tenant: Paul Carr
Respondent Landlord: Sinead Buttle
Address of Rented Dwelling: 62 Allen Park Road, Stillorgan, Dublin , Dublin,
Tribunal: John Keane (Chairperson)
Gene Feighery, Kevin Baneham
Venue: Tribunal Room, PRTB, Floor 2, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 28 October 2015 at 2:30
Attendees: Paul Carr (Appellant Tenant)

Sinead Buttle (Respondent Landlord)
Brendan Curran, O’ Doherty Warren Solicitors (Respresentative of the Respondent Landlord)

In Attendance:
Gwen Malone Stenographers
1. Background:
On 17 June 2015 the Tenant made an application to the Private Residential Tenancies Board (“the PRTB”) pursuant to Section 76 of the Residential Tenancies Act 2004 as amended (“the Act”). The matter was referred to an Adjudication which took place on the 15 August 2015 (called in this report the “2015 Adjudication”)The Adjudicator determined that:
The Applicant Tenant’s claim for damages for breach of landlord’s obligations was not upheld.
Subsequently an appeal was received on the 25 July 2015 from the Appellant Tenant. The grounds of the appeal relate to breach of Landlord’s obligations. The appeal was approved by the Board on the 04 September 2015.
The PRTB constituted a Tenancy Tribunal and appointed Gene Feighery, Kevin Baneham, and John Keane as Tribunal members pursuant to Section 102 and 103 of the Act and appointed John Keane 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 28 October 2015 the Tribunal convened a hearing at Tribunal Room, PRTB, Floor 2, O’Connell Bridge House, D’Olier Street, Dublin 2.
The tenancy commenced on the 18 July 2013 and finished at the end of September 2014. A Letting agreement was entered into between Sinead Buttle (1) and Aonghus O’ Neill and Paul Carr (referred to in this report as “the Tenants”) (2) on the 18 July 2013 for the Letting of the dwelling at the rent of €1,400 and a deposit of €1,400 was paid.
There was a previous Adjudication hearing under Case Reference Number DR 0714-13285 on the 26 August 2014, between the other tenant Aonghus O’ Neill and the Respondent Landlord (called in this report “the 2014 Adjudication”). A Determination Order, Reference Number DR 0714-13285 (called in this report “the 2014 Determination Order”) dated the 16 December 2014 issued from the Board on foot of the 2014 Adjudication which determined that:
The Respondent Landlord shall pay the total sum of €400 to the Applicant Tenant within 14 days of the date of issue of this Order, being €1,700 damages for breach of her obligations pursuant to Section 12(1)(a) of the Act in failing to allow the Applicant Tenant peaceful and exclusive occupation, having offset €900 in respect of rent arrears and having offset €400 in damages for the failure of the Applicant Tenant to comply with his obligations under Section 16(a) of the Act, in respect of the tenancy of the dwelling at 62 Allen Park Road, Stillorgan, Co. Dublin.
The Appellant Tenant is claiming in relation to the same breach of the Landlord’s obligations pursuant to Section 12(1)(a) of the Act as Mr O’ Neill claimed in the 2014 Adjudication.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
The Respondent Landlord’s Representative submitted the following documentation and there was no objection to the submission by the Appellant Tenant:
Determination Order Reference Number DR 0714-1328
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 said that he would be happy to clarify any queries in relation to the procedures either then or at any stage over the course of the Tribunal hearing.
The Chairperson explained the procedure which would be followed; that the Tribunal was a formal procedure but that it would be held in as informal a manner as was possible; that the person who appealed (the Appellant) would be invited to present his case first; that there would be an opportunity for cross-examination by the Respondent; that the Respondent would then be invited to present her case, and that there would be an opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be recorded by the official stenographer present and 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. 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 said that members of the Tribunal would ask questions from time to time to assist in clarifying the issues in dispute between the parties. The Chairperson explained that should the parties indicate that they would be able to resolve the dispute through negotiation, the Tribunal would facilitate any such settlement.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the Board would make a Determination Order which would be issued to the parties and could be appealed to the High Court on a point of law only [reference section 123(3) of the 2004 Act].
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenant stated that he did not know the procedure in relation to the Application to the PRTB. He said that he gave Mr O’ Neill a statement to be submitted at the hearing of the 2014 Adjudication which was not allowed as a submission by the Adjudicator. He told the Tribunal that in hindsight, it would have been a good idea to lodge both his own application and the application of Mr O’Neill at the same time. He said he did not believe that Mr O’ Neill said that he was representing both Tenants at the 2014 Adjudication. He explained that the award was paid into the joint account of the Tenants as this was the account that the rent was discharged from. He said he was aware of the Application to the PRTB for the 2014 Adjudication and that he discussed the case with Mr O’ Neill. He pointed out that he paid half the rent arrears of €450 to Mr O’ Neill as he was jointly and severally liable for the rent. In subsequent cross examination, the Appellant Tenant stated that his mother was sick around the time the complaint was made in relation to the 2014 Adjudication and he did not intend making a complaint himself at this time.
The Appellant Tenant claimed that there was a breach of his right to privacy as a result of the commencement of building works in the back garden of the dwelling and an attempt to carry out paving at the front of the dwelling. He explained that the works commenced on the 7 July 2014 and the first time that he had been informed about the works was on the 3 July 2014. He explained that the Respondent Landlord told the Tenants that the work would go on for a week or two but the works were not completed until early August. He drew the Tribunal’s attention to photographs of the works which he said were taken by both Tenants in relation to the extent of the works which he said showed the back garden to be a building site. He explained that part of the works carried out consisted of what appeared to be the foundations for an extension.
He said that the Tenants allowed the workmen to access the back garden and pointed out that one of the workmen’s trailers was parked in the front driveway in one of the photographs. He stated that the workers never asked the Tenants to move their cars or permission to park the trailer in the driveway.
He submitted that there was a breach of Section 12 of the Residential Tenancies Act as his right to privacy was affected. He outlined that there was dust and noise for 5 ½ days of each week that the works were ongoing.
Respondent Landlord’s Case:
The Respondent Landlord’s Representative made a preliminary application to have the case against the Respondent Landlord dismissed on the basis that the claim was already heard in the 2014 Adjudication between the other tenant Aonghus O’ Neill and the Respondent Landlord. He submitted a copy of the 2014 Determination Order to the Tribunal. He outlined that Mr O’Neill, the other tenant, confirmed at the 2014 Adjudication that he was representing both Tenants and the Respondent Landlord gave evidence to this effect at the hearing. He referred to the four reasons given by Adjudicator for not upholding the Appellant Tenant’s application at the 2015 Adjudication which is the subject of this Appeal as follows: Firstly, that the letters from O’Doherty Warren & Associates indicate that Mr O’Neill represented that he was acting on behalf of both tenants; Secondly, the approach taken by the Adjudicator in the 2014 Adjudication being demonstrative of her treating the application by Mr O’Neill as being on behalf of both tenants. The rent referred to throughout her Report is expressed to be €1,400.00. This was not Mr O’Neill’s portion of the rent; rather, that sum was the entire rent payable by both tenants. Furthermore, there does not appear to be anything in the 2014 Adjudication to indicate that the damages of €1,700.00 assessed by the Adjudicator were particular to Mr O’Neill alone. Thirdly, prior to making a complaint to the PRTB, Mr O’ Neill dealt with the Respondent Landlord on behalf of both Tenants. Fourthly, the damages awarded under the 2014 Adjudication by the Adjudicator were paid by the Respondent Landlord to a joint account owned by both tenants.
The Respondent Landlord’s Representative added that the Appellant Tenant waited until the 7 January 2015 to email the Respondent Landlord in relation to his claim for the breach of the Landlord’s obligations. He pointed out that this email was after the award under the 2014 Determination Order was discharged by the Respondent Landlord in late December 2014. He submitted that his client should not have to deal with the complaint again.
The Respondent Landlord’s Representative submitted that notice was given by the Respondent Landlord in relation to the works and the Tenants agreed that the works could proceed. He stated that it was accepted by the Respondent Landlord that the notice period was short. He explained that it was anticipated by the Respondent Landlord that the works would be completed within three weeks from the commencement date on the 7 July 2014 but were not completed until the 4 August 2014. He referred to Special Letting Provision 3 in the Letting Agreement which states “The Landlord reserves the right for entry to the side garden, to begin construction of the extension to the existing property”.
The Respondent Landlord outlined that the reason the decking was removed related to a problem experience with rodents during a previous tenancy. She explained that she did not want to waste money putting in a patio and a concrete slab was put in place so an extension could be constructed in the future. She said this was her one opportunity to carry out the works and it was a case of now or never. She explained that an apartment adjoining the dwelling was demolished and re-built.
6. Matters Agreed Between the Parties
1. The tenancy commenced on the 18 July 2013 and finished at the end of September 2014.
2. A Letting agreement was entered into between Sinead Buttle (1) and Aonghus O’ Neill and Paul Carr (2) on the 18 July 2013 for the Letting of the dwelling at the rent of €1,400 and a deposit of €1,400 was paid.
3. Building works commenced in the back garden of the dwelling on the 7 July 2014 and ended in early August 2014.
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 the Appellant Tenant should have submitted his Application for Dispute Resolution Services at the same time as the co- tenant, Aonghus O’ Neill and accordingly the Appellant Tenant’s application regarding breach of landlord’s obligations under Section 12 (1) (a) in respect of the tenancy of the dwelling in not uphled.
Reasons:
1. The Appellant Tenant did not give a sufficient reason for not making an Application for Dispute Resolution Services at the same time as his co-tenant Aonghus O’ Neill. The Appellant Tenant was aware that an Application for Dispute Resolution Services was being made to the PRTB and discussed the case with Mr O’ Neill. He gave evidence that he did not intend making a claim at the time Mr O’ Neill submitted his application. He acknowledged in hindsight that it would have been a good idea to submit his own application at the same time as Mr O’ Neill. He did not make his own Application until after the 2014 Determination Order issued.
2. The Tribunal finds that it is unfair to the Respondent Landlord that she should have to defend the same claims regarding the breach of the Landlord’s obligations on two separate occasions. There were no special circumstances justifying the Appellant Tenant not making his Application for Dispute Resolution Services at the same time as the co-tenant Mr O’ Neill.
3. In these circumstances, the Tribunal is of the view that this is an appropriate case in order to apply the rule in Henderson v. Henderson (1843) 3 Hare 100. As a starting point, common law estoppel can be applied in proceedings before quasi-judicial Tribunals (see the decision of the Labour Court in Jahan Company T/A Irema Ireland Limited v. Anne Power (EDA 1326) and the decision of the UK Court of Appeal in Divine-Bortey v. London Borough of Brent [1998] IRLR 525). The rule in Henderson v. Henderson provides that parties should bring forward their whole case in litigation and, except in special circumstances, parties will not be permitted to open up the same subject of litigation in respect of issues that might have been brought forward in a previous set of proceedings. In Culkin v. Sligo County Council [2015] IEHC 46, the Kearns P. considered the rule in Henderson v. Henderson in the following terms:
“The rule in Henderson v Henderson is well established and is frequently applied as part of the policy of the courts to avoid double litigation of the same issues, as considered by the Supreme Court in A.A. v. Medical Council [2003] 4 IR 302. This rule is in the interests of all parties to a case, who should not be expected to prosecute or defend the same proceedings repeatedly, and to the public, who have an interest in ensuring that court time is not wasted.”
8. Determination:
Tribunal Reference TR0815-001320
In the matter of Paul Carr (Tenant) and Sinead Buttle (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
The Appellant Tenant’s application regarding breach of landlord’s obligations under Section 12 (1) (a) in respect of the tenancy of the dwelling at 62 Allen Park Road, Stillorgan, Dublin is not upheld.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 06 November 2015.
Signed:

John Keane Chairperson
For and on behalf of the Tribunal.

Comerford v Thompson

 

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001737 / Case Ref No: 0316-24605
Appellant Tenant: Lorraine Comerford, Wolfgang Wachendorff
Respondent Landlord: William Thompson
Address of Rented Dwelling: 88 The Orchard, Old Leixlip Road, Lucan , Co.
Dublin.
Tribunal: John Tiernan (Chairperson)
Andrew Nugent, Siobhan Phelan
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 10 June 2016 at 10:30
Attendees: Lorraine Comerford, Tribunal Appellant, Tenant:
WolfgangWachendorff, Tribunal Appellant, Tenant:
William Thompson, Tribunal Respondent, Landlord.
In Attendance: Mark Whelan, Environmental Health Officer.
DTI Stenographers
1. Background:
On 01 March 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 24 March 2016. The Adjudicator determined that
1. The Notice of Termination served by the Applicant Landlord on the 30 January
2016 on the Respondent Tenants in respect of the tenancy of the dwelling at 88 The
Orchard, Old Leixlip Road, Lucan, Co Dublin is invalid.
2. The Respondent Tenants shall pay the total sum of €233.30 to the Applicant
Landlord within 28 days of the date of issue of the Order, being rent arrears of
€233.30 in respect of the tenancy of the dwelling at 88 The Orchard, Old Leixlip
Road, Lucan, Co Dublin.
Subsequently an appeal was received from the Tenant on 26 April 2016 and the grounds
of the appeal were ’Standard and maintenance of dwelling, Rent arrears, Rent more than
market rate, Breach of landlord obligations’ and it was approved by the Board on 28 April
2016. An appeal was also received from the Landlord on 02 May 2016 and the grounds of
the appeal were ‘Overholding, Rent arrears, Rent arrears and overholding’ and it was
approved by the Board on 03 May 2016
The PRTB constituted a Tenancy Tribunal and appointed John Tiernan, Andrew Nugent,
Siobhan Phelan 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 29 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 10 June 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties 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 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 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 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 is an offence
punishable by a fine of up to €4,000 and/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 Chairperson also informed the parties that if it seemed that they might be able to
resolve their dispute by agreement, the Tribunal would facilitate any such negotiations.
The Parties intending to give evidence were then sworn in.
5. Submissions of the Parties:
Evidence of the Appellant Tenants: The first named Appellant Tenant gave evidence that
when she received the notification of rent review dated 17th November 2015 they replied
to the Respondent Landlord in correspondence dated 23rd November 2015 stating that
they considered that he was in breach of their letting agreement and that the new rent
was too high because of 1) Smell of sewage, pipes regularly blocked up which is a major
health risk and needs to be resolved before any increase is considered 2) Noise pollution
from the water pump/ventilator/neighbours fan, as well as noise from alarms of adjacent
dwellings 3) Security risk through main gate and front door to the apartment block being
left open and unidentified cars abandoned in the car park 4) Costs of heating due to bad
insulation 5) insect infestation in September 2013 and 2014.
She said that they were out of the country from 22nd December 2015 to 6th January
2016 and thus they only received the Respondent Landlord’s letter of 22nd December
2016 containing his assertion that the rent review was to take effect on 1st January 2016
when they returned. She submitted that they felt that they did not need to contact the RTB
regarding the rent review because by letter dated 21st December 2015 they had issued a
list of repairs to the Respondent Landlord that they required to be attended to prior to
28th February 2016. She said that the Respondent Landlord ignored her requests.
She gave evidence that she referred a dispute to the RTB on 20th January 2016 having
submitted a letter some days earlier dated 16th January 2016 and sought a mediation
process which was not successful and which was confirmed through the ‘Statement of
Mediation’ dated 22nd March 2016. She gave evidence that at a subsequent dispute
resolution process adjudication hearing on 24th March 2016 that was separately
commenced by the Respondent Landlord she was not permitted to adduce evidence
relating to the issue of the rent increase.
She gave evidence that the initial lease agreement was for a period of 12 months and
commenced on 1st September 2013. She said that in August 2014 she had a discussion
with the Respondent Landlord and that in order to avoid having to meet up and negotiate
terms every 12 months they agreed that the ‘Term’ of the lease should be amended by
changing it from ‘12 months from 1st September 2013’ by the addition of the words ‘+
rolling basis thereafter’. She said that in her opinion that meant that there would be a 12
month fixed term lease wherein the rent could only be reviewed on each anniversary. She
said that therefore the Respondent Landlord could not increase the rent in January 2016
as he had not taken the opportunity to do so on 1st September 2015. Furthermore she
submitted that they have now issued notice to the Respondent Landlord that they wish to
vacate the tenancy at end of June 2016 and that the Respondent Landlord will then be in
a position to increase the rent with any new tenant as he sees fit. The first named
Appellant Tenant referred to correspondence they had issued to the Respondent
Landlord purporting to terminate the lease on 30th June 2016 for the reasons 1) that he
had violated their tenancy agreement and 2) because he had not complied with their
request to address the matters raised in their letter of 23rd November 2015.
She said that she objected to the validity of the Notice of Termination that was issued by
the Respondent Landlord because it was grounded on a rent increase that was not valid
in terms of the rolling fixed term lease agreement that was in place. She accepted that
they had not lodged a dispute with the RTB within the prescribed 28 days of having
received the notification but said that she had raised the matter directly with the
Respondent Landlord and he had not addressed the issues she had raised. The first
named Appellant Tenant cited a number of matters that she believed showed that the
Respondent Landlord was in breach of his obligations in regard to the standard and
maintenance of the dwelling. She referred to correspondence dated 6th October 2013 not
long after the commencement of the tenancy wherein she drew attention to 1) a smell
from the washing machine 2) the squeaky front door 3) night-time noise from the water
pump in the hall.
The first named Appellant Tenant said that the smell issue was first raised with the
Respondent Landlord in October 2013. At that stage she thought that it emanated from
the washing machine and the Respondent Landlord replied that she should check behind
the machine which she said she did but found nothing and the problem persisted. The
second named Appellant Tenant gave evidence that the smell emanated from
somewhere outside of the dwelling under the apartment block and was common to the
other apartments and other residents in the apartment block experienced the same
phenomenon. He said that the management company ODPM had been making efforts to
trace the origin but to date have not succeeded in doing so. The first named Appellant
Tenant gave evidence that on one occasion in or about September 2015 a company
named ‘Drain Doctor’ that was engaged by ODPM discovered a blockage at a bend in a
sewer outside of the dwelling and cleared it. She gave evidence that there was a
suggestion at that time that there should be a ‘P-Trap’ put on a pipe in the dwelling to
prevent any smell coming back up one particular pipe. She said that after that when the
issue of the rent increase arose she became busy on that matter and did not pursue the
issue of the smell for a period and did not discuss the ‘P-Trap’ suggestion with the
Respondent Landlord. Later under cross examination she recalled that she had spoken to
the Respondent Landlord’s wife on the matter over the phone. In response to a query
from the Tribunal the first named Appellant Tenant gave evidence that her only written
communication directly with the Respondent Landlord on the smell issue prior to the issue
of the rent increase was the original email of 6th October 2013. She referred to the many
occasions referenced in the documentation she had submitted which shows that she
raised the matter with ODPM regularly. She said that she began to engage with ODPM
on her own initiative. She said that prior to permitting ‘Drain Doctor’ to come enter the
dwelling she had engaged with the Respondent Landlord over the phone because as a
tenant she needed his consent and that his concern at the time was to ensure that the
responsibility for the bill for Drain Doctor was not being accrued to him.
The second named Appellant Tenant gave evidence that there are problems with the
alarms on adjacent dwellings going off and continuously ringing for up to 20 hours or 40
hours on occasions. The first named Appellant Tenant referred to the record lists of
occasions when this had occurred and which she submitted to ODPM. She said that
these matters were being raised in support of her contention that the rent being imposed
is too high for a dwelling where such nuisance occurs.
The first named Appellant tenant gave evidence that when she consulted Threshold on
the matter of the rent increase she was advised that she should not pay the increased
rent as the RTB had a dispute resolution process ongoing and that she should seek to
have the dwelling inspected by an Environmental Health Officer from the Local Authority.
The first named Appellant Tenant confirmed that they paid rent of €1,000 in January 2016
and that they paid the increased rent of €1,250 in February 2016. She gave evidence that
in the subsequent months of March, April and May 2016 they had paid rent at the rate of
€1,000 per month and that in June 2016 she had paid €750 to balance out what she
considered to be her overpayment of rent in February 2016 because she considered she
should not have paid the increased rent in in that month because at that stage a dispute
resolution process at the RTB had commenced and that in her view she should only pay
the original rent until the dispute was resolved.
In response to a query from the Tribunal the first named Appellant tenant said that in her
written statement dated 24th March 2016 which was submitted to the Tribunal her
reference to Gas Networks Ireland having told her that the ‘Gas Boiler’ needed to be
changed and that she worried that she had an ineffective and out of date boiler in the
premises that she was renting which was a possible danger to her – should have read
‘Gas Meter’.
Evidence of Mr Mark Whelan: Mr Whelan gave evidence that he is an Environmental
Health officer acting on behalf of South Dublin County Council. He said that at the request
of the first named Appellant Tenant he carried out an inspection of the dwelling on 6th
April 2016. He said that he issued a letter to the Respondent Landlord on 7th April 2016
requesting that the Gas Boiler receive its annual service. He confirmed that the previous
service record showed that the boiler had been serviced in March 2015. He gave
evidence that the boiler was serviced and on 12th May 2016. He further stated that the
dwelling was in full compliance with the required standards and that there was no cause
to issue an Improvement Notice. He further confirmed that he conveyed the Appellant
Tenants’ stated concerns regarding fan and mechanical ventilator noise to the
Respondent Landlord’s attention.
Evidence of Respondent Landlord: The Respondent Landlord gave evidence that
following some conversations on the matter with the Appellant Tenants he issued a
written Notice of Rent Review to the appellant Tenants on 17th November 2015. He said
that this was to increase the rent from €1,000 per month to €1,250 per month and was to
come in to effect on 1st January 2016. He gave evidence that this was in line with the
market rent at the time that he had gleaned from two well known property letting websites
and from his knowledge of other apartments in the same development complex. He said
that furthermore he had offered that they could have an estate agent or other
independent party validate or assess what would be an appropriate rent for the property
at that time. He said that the Appellant Tenants did not take up this offer and did not refer
the matter to the Board within the required 28 day period and that thus he was entitled to
the increased rent from 1st January 2016. He referred to the Appellant Tenants’ own
evidence whereby they said that they had sought mediation on the matter on 16th
January 2016 by which time the new increased rent was established in accordance with
the provisions of the Act. He said that for the first 28 months of the tenancy since
September 2013 there had been no increase in the monthly rent.
The Respondent Landlord said that the Appellant Tenants did not pay the increased rent
on the 1st January 2016 and that this placed them in a position of being in rent arrears
from that date. He verified that the Appellant Tenants paid the increased rent of €1,250 in
respect of February 2016 but that subsequent to that they had not paid the increased rent
amount but continued to pay the old rent of €1,000 for the months of March, April and
May 2016. He said that on 1st June 2016 the Appellant Tenants had paid €750 and
referred to the evidence of the first named Appellant Tenant wherein she said that she
paid this sum because she considered she should not have paid the increased rent in
February 2016 for the reason that at that stage a dispute resolution process at the RTB
had been commenced and that in her view she should only pay the original rent until the
dispute was resolved.
The Respondent Landlord gave evidence of having issued an informal 7 day Warning
Notice in accordance with Section 34 of the Act to the Appellant Tenants on 5th January
2016 which was not addressed by the Appellant Tenants and that he followed this with a
formal 14 Day Warning Notice which again was not rectified by the Appellant Tenants. He
said that he ultimately issued a Notice of Termination with a date of termination of 27th
February 2016. In response to a query from the Tribunal he expressed the view that the 7
day informal Warning Notice was appropriate in the circumstances and that in his view in
the judgement of Ms Justice Laffoy in the Canty case whereby she said that a Warning
Notice should be for a minimum period of 14 days she was referring to the formal 14 Day
Warning Notice and not the Warning Notice referred to in s.34 of the Act. He said that the
Appellant Tenants remain in occupation of the dwelling and are thus over-holding.
The Respondent Landlord gave evidence that when the tenancy commenced in
September 2013 this was the subject of a written lease agreement for 12 months. He said
that in June 2014 he had a discussion with the Appellant Tenants and in order to
accommodate their expressed uncertainty relating to their being in a position to fulfil a full
12 months period of occupancy from September 2014 going forward he agreed to amend
the tenancy term from ‘12 months from 1st September 2013’ by inserting the text ‘+ rolling
basis thereafter’. It was his evidence that this reflected that the tenancy would roll forward
on a month to month basis after that. He did not agree with the Appellant Tenants’ view
that such inclusion bound him to only increasing rent on the anniversary of each 12
month period of the tenancy.
The Respondent Landlord said that the majority of the matters raised by the Appellant
Tenants in relation to alleged breach of his obligations refer to matters relating to the
maintenance of the common areas and fall within the ambit of the Multi-Unit Development
Act. These he cited as matters relating to 1) Noise from security alarms in other dwellings
2) Noise from a fan in an adjacent dwelling 3) Functionality of security gates and access
doors to common areas 4) Sewage smells arising outside of but in the vicinity of the
dwelling.
He gave evidence of his responses to other matters raised including 1) engagement of a
plumber to deal with problems that arose with the washing machine 2) engagement of a
plumber to deal with noise from a water circulation pump 3) That the Gas Boiler was
serviced on 25th March 2015.
The Respondent Landlord denied that he was requested by the Appellant Tenants to
install a ‘P-Trap’ on an internal pipe which had been recommended by a company
engaged by the ODPM the maintenance company for the apartment complex.
The Respondent Landlord said that both he and his wife had been the occupants of the
dwelling immediately prior to the tenancy and that they had not experienced any of the
phenomena that have been raised as issues by the Appellant Tenants.
6. Matters Agreed Between the Parties
1) That the tenancy of the dwelling commenced on 31 August 2013.
2) That the initial monthly rent was €1,000
3) That a security deposit in the sum of €1,000 was paid and is still retained by the
Respondent Landlord.
4) That the amount of the rent increase sought by the Respondent Landlord as notified in
correspondence of 17th November 2015 was €250 from 1st January 2016.
7. Findings and Reasons:
Findings and Reasons: Having considered all of the evidence that has been adduced in
written, oral and electronic forms the Tribunal has made the following findings based on
that evidence and upon the balance of probabilities.
Finding No.1:
The Tribunal finds that the rent review as carried out by the Respondent Landlord to
increase the rent to €1,250 from 1st January 2016 is valid and that the rent payable in
respect of the dwelling from that date is €1,250 per month.
Reason(s): The Notice of rent increase was issued by the Respondent Landlord on 17th
November 2015. This pre-dated the introduction of the amendment to the 2004 Act and
thus the Tribunal considers that the provisions of Part 3 of the Act of 2004 apply. The
Tribunal notes that the Respondent Landlord provided a period in excess of the required
minimum notice period of 28 days to the Appellant Tenant as required under s.22(2) of
the Act. Furthermore the Tribunal has had regard to the fact that the Appellant Tenants
did not refer the matter to the Board for dispute resolution within that required Notice
period. On this basis the Tribunal considers that the rent review was carried out and
effected in the appropriate manner as required and is valid.
Finding No.2:
The Tribunal finds that the Appellant Tenants are in rent arrears to the date of the
Hearing in the sum of €661. The Tribunal finds that this sum shall be paid to the
Respondent Landlord within 28 Days of the date of issue of the Determination Order by
the Board.
Reasons: Having regard to Finding No.1 above the Tribunal has noted the evidence of
both parties to the dispute to the effect that the Appellant Tenants have paid the total sum
of €6,000 in rent for the first 6 months since the operative date of the new increased rent
of 1st January 2016. This sum is derived by adding the amounts of €1,000 paid in respect
of January, March April & May 2016 and the sum of €1,250 paid in respect of February
2016 and €750 in respect of June 2016.
Notwithstanding that the agreed evidence shows that the Appellant Tenants paid rent of
€750 on 1st June 2016 the Tribunal in considering the rent due by the Appellant Tenants
may only do so up to and including the date of the Tribunal Hearing on 10th June 2016.
As of that date there are 10 days rent due in respect of the month of June 2016.
The rent due in respect of the period from the 1st January to 31st May 2016 is:
5 X €1,250 = €6,250
The rent due for the period 1st June to 10th June (being the date of the Tribunal Hearing)
is
10 X Daily Rate
The Daily Rate is calculated by multiplying the monthly rate by 12 to yield an annual rent
of €1,250 X 12 = €15,000 and dividing this sum by 365 = €41.10
For 10 days this is multiplied by 10 = €411
The total rent due as of the date of the Tribunal Hearing amounts to €6,250 + €411 =
€6,661
Note: The Appellant Tenants stated in evidence that they were going to vacate the
dwelling on 30th June 2016 and in the event that this occurred the balance of monies due
in respect of the period from 11th June 2016 to 30th June 2016 is therefore €1,250 less
€411 = €839
Finding No.3:
The Tribunal finds that the Notice of Termination as issued by the Respondent Landlord
to the Appellant Tenant is invalid.
Reasons:
The Tribunal notes that the tenancy is a Part 4 tenancy and that therefore for a Notice of
Termination in respect of rent arrears to be effected in accordance with the provisions of
the Act the Respondent Landlord is required to issue two Warnings in accordance with
Ground 1 of the Table in s.34 of the Act and in accordance with s.67(3) of the Act
respectively. The Respondent Landlord gave evidence of having issued an informal 7 day
Warning Notice in accordance with s.34 of the Act and that he followed this with a formal
14 Day Warning Notice in accordance with s.67(3) of the Act prior to issuance of the
Notice of Termination.
He expressed the view that the 7 day Warning Notice under the provisions of s.34 of the
Act was appropriate in the circumstances and that in his view in the judgement of Ms
Justice Laffoy in the Canty case whereby she said that a such Warning Notice should be
for a minimum period of 14 days she was referring to the formal 14 Day Warning Notice
under s.67(3) of the Act and not the Warning Notice referred to in s.34 of the Act. The
Tribunal has had regard to the precise wording of Ms Justice Laffoy in the Canty case
wherein she stated ‘It is difficult to understand why, in relation to non-payment of rent, the
notification required by para. (a) of ground 1 in s. 34 could not have been made coterminous
with the notification under s. 67(3). As it has not been, it seems to me that
prudence dictates that a landlord invoking ground 1 should serve notice in the form
required by para. (a) on the tenant allowing at least fourteen days for remedying the
breach, that is to say, discharging the outstanding rent, although, on the facts of a
particular case, that period might not constitute a “reasonable time” within the meaning of
para. (a)’.
It is clear to the Tribunal that in this context the Honourable Judge was referring to s.34
(ground 1) of the Act and not the formal 14 Warning Notice under s.67(3). It is noted by
the Tribunal that the Honourable Judge included the words ‘at least 14 days……although,
on the facts of a particular case, that period might not constitute a reasonable time within
the meaning of para. (a)’. The Tribunal considers that the words ‘at least 14 days’ are to
be interpreted to apply to the latter clause of the above quoted sentence which would
preclude any period less than 14 days in any circumstances. However even in an
interpretation of the above as contemplating a period less than 14 days in the s.34 Notice
on the facts of a particular case the Tribunal notes that the Respondent Landlord
notwithstanding his assertion that the 7 day period provided in his s.34 (ground 1)
Warning Notice was appropriate in the circumstances did not provide any reasoning to
support that assertion.
Finding No.4:
The Tribunal finds that the Respondent Landlord has not been in breach of his obligations
under the provisions of s.12(1)(b) of the Act in respect of the standard and maintenance
of the dwelling.
Reasons(s): The Tribunal considers that the Appellant Tenants did not adduce sufficient
evidence to establish that the Respondent Landlord had failed in his obligations under the
Act in regard to the standard and maintenance of the dwelling. The matters raised
included the following:
1) Noise from electric fans and pump: The Tribunal considers that the evidence submitted
by the Appellant Tenants which included four DVD recordings of the phenomenon as well
as oral evidence did not show a breach on the part of the Respondent Landlord in this
regard. The Tribunal notes the evidence of the Appellant Tenants that the matter of the
noise from the pump was resolved with the assistance of the Respondent Landlord
through advice recommending switching the pump off at night-time.
2) Noise pollution from the Security Alarms of adjacent Dwellings: The Tribunal considers
that this matter does not fall within the obligations of the Respondent Landlord in the
context of the Act of 2004.
3) Malfunction of the security gates and doors in common areas: The Tribunal considers
that this matter does not fall within the obligations of the Respondent Landlord in the
context of the Act of 2004.
4) Insect Infestation in September 2013 & 2014: The Tribunal considers that the Appellant
Tenants did not adduce sufficient evidence to demonstrate that the two occasions on
which there was an alleged infestation of insects/ants in the dwelling and the remedy
thereof fell within the obligations of the Respondent Landlord.
5) Sewage smells emanating in the vicinity of the dwelling: The Tribunal considers that
the weight of the evidence adduced on the part of the Appellant Tenants in regard to the
intermittent existence of sewage smells in the vicinity of the dwelling related to matters
outside of the dwelling and to problems relating to external sewers. The Tribunal
considers that the evidence relating to the installation of a ‘P-Trap’ on an internal pipe in
the dwelling could be deemed precautionary based rather than a definitive source of such
odours.
6) Malfunction of the Washing Machine: The Tribunal considers that the Respondent
Landlord provided an appropriate first response to the problem relating to the washing
machine and that there was insufficient evidence of or to demonstrate that he had failed
to respond to any further requests in relation to the matter.
7) Cost of Heating and Bad Insulation: The Tribunal considers that the Appellant Tenants
failed to substantiate their claim of negligence on the part of the Respondent Landlord in
relation to this matter.
8) Failure to maintain the Gas Boiler: The Tribunal considered the matter relating to the
maintenance of the gas boiler at the dwelling. It is noted that the evidence of Mr Whelan
referred to the fact that the gas boiler had not been serviced within the previous 12
months but had been serviced some 13 months previously and that he brought this to the
Respondent Landlord’s attention. Whereas the Tribunal is conscious of manufacturers’
instructions and general industry practice that a gas boiler should be serviced every 12
months for efficiency and safety reasons the Tribunal considers that there is no statutory
obligation to effect such servicing under the Housing (Miscellaneous Provisions) Act 1992
or associated Statutory Instruments S.I. 534 of 2008 Housing (Standards For Rented
Houses) Regulations 2008 and S.I. 426 of 2009 Housing (Standards For Rented Houses)
Regulations 2009 or under the Energy (Miscellaneous Provisions) Act 2006 or any other
relevant enactment. Having regard to the short period in excess of the 12 months
accepted practice since the boiler in this case had been serviced and the lack of any
other evidence to the effect that the gas boiler was not operating safely the Tribunal does
not consider that there is a breach of any of the Respondent Landlord’s obligations under
the relevant statutory provisions.
In the above matters the Tribunal has also had regard to the evidence of Mr Mark
Whelan, EHO on behalf of South Dublin County Council who stated that following his
inspection of the dwelling there was no Improvement Notice issued in respect of the
dwelling which he said complied in all respects with the relevant standards. The Tribunal
has also had regard to the evidence of the previous boiler service date of 26th March
2015.
8. Determination:
Tribunal Reference TR0416-001737
In the matter of Lorraine Comerford, Wolfgang Wachendorff (Tenant) and William
Thompson (Landlord) the Tribunal in accordance with section 108(1) of the
Residential Tenancies Act 2004, determines that:
1) The Notice of Termination issued by the Respondent Landlord on the
Appellant Tenants dated 13th January 2016 is invalid.
2) The Rent Review carried out by the Respondent Landlord to increase the
rent from €1,000 per month to €1,250 per month to commence on 1st
January 2016 is valid in respect of the tenancy of the dwelling 88 The
Orchard, Old Leixlip Road, Lucan , Co. Dublin.
3) The Appellant Tenants are in rent arrears in the total sum of €661 as of 10th
June 2016, the date of the Tribunal Hearing, and shall be liable to pay this
sum to the Respondent Landlord within 28 days of the date of issue of this
Order by the Board.
4) The Appellant Tenants shall be liable to continue to pay rent at the increased
monthly rent amount of €1,250 for each month of occupation subsequent to
10th June 2016 until such time as the tenancy is terminated.
5) The Respondent Landlord is not in breach of his obligations in regard to the
standard and maintenance of the dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
15 July 2016.
Signed:
John Tiernan Chairperson
For and on behalf of the Tribunal.

 

Connolly v Hogan

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0116-001544 / Case Ref No: 1115-22202
Appellant Landlord: Tom Connolly
Respondent Third Party: Bryan Hogan
Address of Rented Dwelling: 10 Palace Gardens, Dame Street, Dublin 2 , Dublin,
Tribunal: Orla Coyne (Chairperson)
John Keane, Kevin Baneham
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 08 March 2016 at 2:30
Attendees: Tom Connolly (Appellant Landlord)
Lisa Connolly (Appellant Landlord’s Representative)
Bryan Hogan (Respondent Third Party)
Sarah Hogan (Mother of Third Party and witness)
Paul McHugh (Agent for Bryan Hogan’s former
Landlord)
In Attendance: RTB appointed stenographer
1. Background:
On 07 November 2015 the Tenant made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 07 December 2015. The Adjudicator determined that:
The Respondent Landlord shall pay the sum of €750.00 to the Applicant Third Party
within 28 days of the date of issue of the Determination Order being damages for
distress and inconvenience resulting from the breach of the Respondent Landlord’s
obligations under Section 15 of the Residential Tenancies Act 2004, in respect of the
tenancy of the dwelling at 10 Palace Gardens, Dame Street, Dublin 2.
Subsequently the following appeals were received. The first from the Landlord on 06
January 2016. The grounds of the appeal is Other. The appeal was approved by the
Board on 12 January 2016
The second from the Third Party on 07 January 2016. The grounds of the appeal are
Anti-social behaviour and Breach of landlord obligations. The appeal was approved by
the Board on 14 January 2016
The RTB constituted a Tenancy Tribunal and appointed Kevin Baneham, John Keane,
Orla Coyne as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Orla Coyne to be the chairperson of the Tribunal (“the Chairperson”).
On 04 February 2016 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 08 March 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the 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 first (in this case, the Landlord) would be invited to present their
case first; that there would be an opportunity for cross-examination by the Respondent
Third Party; that the Third Party would then be invited to present his case, and that there
would be an opportunity for cross-examination by the Landlord.
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 punishable
by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
5. Submissions of the Parties:
Appellant/Respondent Landlord’s Case:
The Landlord in his evidence stated that when anti social behaviour was ever reported to
him he always addressed it. He stated the first he heard of anti social behaviour in the
apartment block was when he was contacted by the Gardai from Pearse Street in or
about August 2014.
He stated that there had been reports of people coming and going to his apartment, No.
10 Palace Gardens,young boys were going into the apartment during the day time and
there were other stories of young girls and adults also going into the apartment. He
stated that he asked the Gardai what he should do about this activity in and out of his
apartment. The Gardai suggested that they would obtain a search warrant to search the
apartment as they were of the belief that party drugs were being supplied from his
apartment.
The Landlord stated that he assisted the Gardai by giving them a set of keys to search
not only this apartment but also a second apartment in the block which he also owned at
that time. He was advised on the 5th September 2014 that the search warrant was in
place and that the Gardai were going to carry out a search on the apartments on that
date.
He said he was not in Dublin on the 5th September 2014 as he was in another part of
Ireland. He received a phone call at 9pm to be advised the search did not go ahead on
that day as the Gardai had kept the apartment block under surveillance and that there
was no person present in either of the apartments. Subsequently the Gardai did carry out
a search on the 25th September 2015 on the apartment. He stated that he asked the
Garda after the raid if there was anything found in the apartments. She advised him that
some white powder had been taken from one of the apartments but it subsequently
transpired that it was a substance that people drink for body building.
He also asked a direct question to the Gardai was there any evidence of prostitution or
any sign of drugs and the Gardai replied that there had been no evidence found in
respect of prostitution or drugs in relation to the apartments and returned the keys of the
apartments to him.
The Landlord went on to state in relation to the Third Party Mr. Hogan, he had very little
dealings with him. He stated that in about mid August 2015 he received a text from one of
his tenants to say Mr. Hogan had gone up to his apartment door and banged on the door,
as a matter had arisen in respect of his tenants in his apartment. He claimed that one of
his tenants had their mother visiting him and that she was being harassed by Mr. Hogan
as he had called her a prostitute.
In and about the same time a note had been placed on the mirror in the common hallway
which stated “go back to your own country” and “prostitutes pay their tax”. However,
when challenged by the Tribunal the Landlord did not know who had put up the note.
However, he went to enquire of Mr. Hogan whether or not he had put up the note. On the
1st August 2015 he went to Mr Hogan’s apartment to question him about his alleged
harassement of his tenants and about the note that had been placed on the mirror in the
hallway.He asked both his tenants to accompany him to Mr. Hogan’s apartment. When
asked by the Tribunal why he requested his tenants to accompany him, he said that he
would never go to another apartment on his own as he would need witnesses because of
his experience of being a landlord over the years. Although his son was also at the
apartment block but he did not ask his son to accompany him as he did not want people
to accuse him of being biased if the son was asked what may have been said in the
course of the conversation with Mr. Hogan.
He said that when Mr. Hogan opened his apartment’s door he was very upset and
accused him of assaulting him and threatening him. The Landlord stated that he had
introduced himself as a director of the management company. He stated that Mr. Hogan
slammed the door shut and through the door the Landlord could hear Mr. Hogan ringing
the police. It was at that stage he said he went out onto the street and eventually flagged
down a policeman on a bike and explained the situation to him and asked the policeman
to accompany him back into the block to speak to Mr. Hogan.
When the Garda knocked on the door Mr. Hogan opened it and explained to the Gardai
that he had been threatened by the Landlord.Mr. Hogan had stated to him “you should do
something about security”. While the Garda was present the Landlord stated that he had
asked Mr. Hogan why he should increase security in the building, Mr. Hogan did not
answer him.The Landlord left the building and waited for the Garda to reappear after
having spoken further with Mr Hogan.The Gardai gave his details to him and said that if
he wished to contact him he could after which the Landlord said he went home at that
stage.
The Landlord stated that he was never in Mr Hogan’s apartment either before or after that
incident.When asked by the Tribunal had he ever seen any images in respect of
individuals that Mr Hogan stated were his tenants and which he had shown to him on a
website on his laptop in his apartment the previous January, he denied categorically that
this had ever happened or that he had ever seen these same images.
When asked by the Tribunal had he looked at the file which was before the Tribunal
which showed these images, he stated that he had looked at part of the file and seen
some of the images but had not seen them on Mr Hogan’s laptop.
He said in relation to the Tribunal’s file he handed all this material to his daughter to deal
with it as she dealt with all his administration business. When asked whether any of the
individuals contained within the images are his tenants the Landlord replied not that he
could recall but he could not categorically state that they were not his tenants as he had
not looked at the full file but he did not see anyone that he recognised.
He claimed that he was never aware of any complaints made by Mr. Hogan either
through his agent or through the management company although he was a director of the
management company, as far as he was aware he did not receive or neither did the
management company receive notice of any problems relating to his tenants causing any
problems within the apartment block. He did not take a proactive role as a director of the
management company.
He stated that the only time. Mr Mc Hugh, the agent for Mr Hogan’s landlord would have
contacted him would be for instance when there was a problem with the roof of the
building. Mr. McHugh, the agent, did not act on behalf of the management company, he
acted on behalf of some owners of other apartments in the block. He said no complaints
of anti social behaviour had ever been put to him by Mr McHugh. He was asked by the
Tribunal how often would he attend at the apartment block. He said he would go there
any time there was a problem. He could be there regularly and then may not attend the
block for over 2 months.
Mr. Hogan asked the Landlord whether he knew the names of all his tenants. The
Landlord stated that he was not too sure about the names of all his tenants in his
apartments.He did accept that the advertisement on the website for AirB&B was his
apartment that was being advertised. He said that the tenants had moved in
approximately 2 years ago to the apartment. When asked by Mr. Hogan whether it was
appropriate to arrive at his apartment on the 1st August 2015 at 9.30pm which was a
Bank Holiday Saturday night. The Landlord was of the view that it should not make any
difference that he was looking after the interests of his tenants and the apartment block. It
is not always possible for him to attend at his apartment in the middle of the day as he
works full time.
The Landlord agreed with Mr. Hogan that the woman who was in his apartment when the
Gardai raided it was not a tenant of his. But he did not believe he had the right to ask his
tenants if there were other people in the apartment what they were doing there.The
Landlord stated that while he had 2 apartments in the block he now had only one, but that
people would have been coming and going between the two apartments while he had
owned them.The Landlord further stated that he had the apartment and the apartment
block under surveillance at different times, the surveillance he carried out in August 2015
he did this because of the complaint made by Mr. Hogan, but he did not find an unusual
number of people going in and out of the apartment block because if he had, he would
have informed the Gardai and allowed them to deal with it. He did accept however there
may have been other people from outside the apartment block going in and out in relation
to the advertisement on the internet but he had no control over this.
Evidence of Ms. Connolly
Ms. Connolly stated that she carried out all the administration work on behalf of the
Landlord who is her father. She stated that the two tenants that are currently registered in
his apartment had been so for the past 2 years. That as far as they are concerned the
apartment is not being sublet to anybody else.However when the advertisement to sublet
a room in the apartment block was pointed out to her, she accepted that it was one of the
rooms in her father’s apartment. Mr. Hogan had downloaded the advertisement from a
website called “Escort Ireland”. However she stated that she was unaware that this
advertisement was on the website relating to the apartment. She reiterated what her
father had said that the only time the Gardai had been in contact about the apartment
was when they were contacted about drugs being allegedly sold from the apartment and
about the number of people going in and out of the apartment. As soon as they found out
about this activity they co-operated and gave a set of keys to the Gardai so they would
not have to break the door down. The gardai did not find anything or bring any charges
and once the keys were handed back by the Gardai to her father, she believed the matter
was at an end. She also confirmed that they had never been contacted by the Gardai to
re-open the investigation.
Ms. Connolly also stated that she owns one apartment and her brother owns 2
apartments in the building, her father owns the apartment in question, namely No. 10.
She said she is also a director of the management company more recently than her father
and she has taken over all matters to do with the management company. They engage a
company to maintain the inside of the apartment block namely cleaning and maintenance.
She deals with them and with one particular individual in this company. She would be in
contact with them on a monthly basis, but she has never been contacted either by them
relating to problems in the block or with any issues that Mr. Hogan is complaining about.
The Tribunal asked her whether there is a log book that would record any incidents.She
replied there was not because any incidents if necessary would be addressed by her.She
stated that she had contacted every owner of the apartments in the block and gave them
her contact details if there was any problems.There had only been one matter reported to
her by a female in another apartment in respect of people sleeping rough near the front
door. She addressed this by contacting Dublin City Council to deal with the situation and
it was dealt with. She also contacted Dublin City Council again and they put in more
lighting for security to assist people going into and out of the apartment block. She said
her own tenant who has been in her own apartment for 9-10 years has not approached
her in relation to any anti-social behaviour and she would be in contact with him on a
regular basis. She further gave evidence that she had spoken to her tenant when the
matter with the Gardai arose to ask him was there anything he wished to speak to her
about and he said there was nothing.
She said that the first time she became aware that anything was wrong was Christmas
2015 when her father received the documentation from the PRTB. She was asked was
she aware that the door to gain access into the building had been forced open she said
no but that if the lock was ever broken she would pay to have it repaired. She was asked
was it a very non eventful building she said she agreed that it was.
She said the first time that she saw the downloaded images from the internet was
Christmas 2015. She said she did not recognise any of the photographs as being her
father’s tenants. But in any event she would not be aware of her father’s tenants and
would not recognise them. She stated that as being a director of the management
company she would like to make the environment in which the tenants live in the block as
comfortable as possible. But she was not aware of any matters ongoing with Mr. Hogan.
When asked by Mr. Hogan how the management company deals with complaints she
said normally the landlords would inform the management company by email, phone or
text. She denied that they received any texts from the agent on behalf of Mr. Hogan’s
landlord. The only time she received a text from the agent was relating to the installation
of CCTV in the building for security purposes. She stated the reason it had not been put
into the building was a financial matter and she is currently looking into this to get the best
quote to install it as it is expensive.
Third Party;Mr. Hogan’s evidence
Mr. Hogan stated that he made complaints in respect of the Landlord’s tenants from 2013
onwards. He had texted the representative of the company which the management
company uses to maintain the building. He stated that the Landlord came to his dwelling
in January 2014, it was then that he showed him the images on the internet of the activity
being carried on within the Landlord’s apartment.He believed that the Landlord had come
to his dwelling in January 2014 after the management company’s agent had contacted
him. It was not prearranged. The Landlord arrived at his door and he showed him the
profiles that were up on the internet. When the Landlord saw some of the images,
especially of one of his tenants at that time he stated “that explains why he always
answers the door in a towel”.
Mr. Hogan also gave evidence that the Landlord also attended at his apartment in March
2014. He was not there but his mother was. He stated that it was after this visit with the
Landlord and his son that he went to the Gardai as the Landlord had done nothing about
the complaint he had made about the activities being carried out in his(the Landlord’s)
apartment. He particularised one incident when in July 2015 he was gaining access to the
apartment block, there was a male and female also trying to gain access.However he
was closing the door behind him but they shouted at him about letting them in, he would
not let them in because he did not recognise them. But at the same time they were being
buzzed in by one of the tenants of the Landlord.As they brushed past him,they made very
threatening remarks, and while he rang the Gardaí the two individuals came back out of
the apartment and left very quickly with their bags. He went up and knocked at the
tenants’ apartment door and requested that they advise their guests not to threaten him. It
was after this incident that the Landlord came to his apartment with the two tenants,and
while the Landlord’s son was outside the apartment block.
He also sent an email to his own landlord’s agent Mr McHugh,who was to contact his
landlord and the representative of the company who carried out work in the apartment
block on behalf of the management company. He stated that the Landlord when he came
to his apartment on the 1st August 2015 introduced himself as the management
company’s director.He started questioning him about why he approached his tenants and
whether he knew anything about posters being put up in the hallway. He stated that he
replied to the Landlord by requesting that he contact the letting agent. He stated that the
Landlord pushed the door of his apartment in,while his two tenants were with him.
He said he eventually got the door closed and rang the Gardai and the letting agent.
When the Garda came to his apartment, which the Landlord had brought in he refused to
allow the Landlord back into his apartment.He told the Garda what had happened that he
had been hit with his own door by the Landlord and did not want him in his dwelling and
felt very threatened. He also stated that the Landlord kept shouting over the Garda asking
him why he wanted more security. The Gardai that he had called arrived subsequently
and he gave a statement to them.
He stated that on the 28th August 2015 around midnight there was a lot of shouting
coming from the hall and when he went out to see where the noise was coming from
there appeared to be a party taking place on the mezzanine upstairs where apartment 10
is situated. The Landlord’s two tenants together with two females were playing music.
There was also at that time another tenant requesting the tenants and their friends to
remain quiet. Mr. Hogan said he would call the Gardai. As he took out his phone to call
the Gardai one of the women a friend of the tenants spat at him. The Gardai did arrive.
But before they arrived everybody had left the apartment.
He mentioned another incident which occurred on the 15th November 2015 when he was
returning to his apartment. As he approached the apartment block he saw one of the
tenants with a woman who was featured in the advertisements on the website offering
escort services.He said that the tenant went ahead of him and blocked his entry into the
apartment block. When Mr. Hogan requested him to move aside the Landlord’s tenant
claimed he said to him “you will have to stop what you are doing I will mess with you”. He
also started to punch into his hand in front of him in a threatening way. He asked him a
number of times to move away from the door he was blocking his access to and he
eventually did. He reported this incident to the Gardai to his Landlord’s agent, and to the
management company’s agent. It was at this time that he brought the matter to the
PRTB.
There was another incident on the 9th July 2015 when Mr. Hogan stated that a pizza was
thrown at the door of his apartment. He reported it to the agent for the management
company however he did not see who had thrown the pizza.
He said that he did meet the Landlord in January 2014 and in August 2015. Any other
time he would have seen him when passing through the apartment building. There was
no communication between them except for the two meetings in January 2014, and
August 2015.
He also stated an email in the Tribunal file of the 14th February 2016 from the Gardai
wherein it states, that they will be carrying out a full review in respect of the matter he
believed showed that the case was not closed and was still ongoing.
Ms. Connolly asked Mr. Hogan how the door handle of his own apartment became
broken. He replied that her father when he appeared at his door, kept pushing the door to
gain access and it broke at this time. He repaired the lock himself and he did not look to
be compensated for same as he stated this matter was not about a broken door but in
respect of what was happening in the apartment block and especially the Landlord’s
apartment about which nothing had been done about the tenants’ behaviour.
Evidence of Mrs. Hogan
She stated that in March 2014 her son was recuperating after having surgery and she
had taken time off work to look after him in his apartment. She said one day in March the
Landlord came to the door and his son was with him. Mrs. Hogan stated that he referred
to his visit to her son in January 2014 in his apartment and he also referred to seeing his
tenants on her son’s computer but that there was nothing going on in his apartment. She
stated that she did not want to engage in conversation with the Landlord and closed the
door and the conversation was finished.
She never spoke with Mr. Connolly again.
Mr. McHugh’s evidence
Mr. McHugh stated that he had never contacted the Landlord of No. 10 directly in respect
of his clients. He stated that any complaints would have been put through to the
representative of the management company. However, he spoke once to the Landlord in
relation to the incident that occurred on the 1st August 2015.
The only time he would have dealt with Mr. Connolly would be in respect of maintenance
to the building in general. He said he would contact the agent for the management
company of the building through a mobile number that he has or an email address.
He said that he received a response from the agent for the management company in
respect of the complaint made by Mr. Hogan in relation to the Landlord’s apartment being
used as an AirB&B that he had reported to him. He said that when he contacted the
Landlord in relation to the 1st August 2015 incident, the Landlord stated that his tenants
had contacted him and when they explained what happened,it was then he went down to
Mr. Hogan’s door and as Mr. Hogan would not speak to him and called the Gardai,he
(the Landlord) went outside to flag down a passing Garda.
Ms. Connolly’s Summation
Ms. Connolly stated that if they had been aware of the continuous issues that were being
alleged by Mr. Hogan they would have acted upon them immediately.She said the ones
they were made aware of were acted upon and that they had done their best to alleviate
any of the issues. It was not their intention to ignore or turn a blind eye to anything
untoward. In relation to the CCTV request by Mr. Hogan,who had intimated that they had
dismissed the idea, this is not the situation as it is up for review and discussion.But
because of the money that is necessary to spend on installing CCTV, it is being currently
looked into.
Mr. Hogan’s Summation
He stated that he did his best to highlight the issues to the Landlord, to his representative
and to his own landlord’s representative. He tried to deal with the matters initially on his
own but he eventually had to contact the Gardai. He said that he has left the dwelling, the
Landlord’s tenants are still there. All the images that he had downloaded from the internet
he had shown to the Landlord but he decided not to do anything about it. The Landlord
went so far as to bring these same tenants to his door in August 2015 which he did not
believe was the correct process to deal with the complaint.
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 Tom Connolly the Appellant/Respondent Landlord
and the owner of apartment 10 in the apartment block in which the Third
Party/Respondent Mr Hogan resided in, was in breach of Section 15(1) of the Act.
Reasons:
1. Mr. Connolly who is the owner and Landlord of apartment 10 was under an obligation
to the person who could be potentially affected by his not enforcing the obligations of his
tenants of his apartment. The Tribunal finds that the Respondent/Applicant Third Party
Mr Hogan was such a person who could be affected, as he lived in the same apartment
block and was directly and adversely affected by Mr. Connolly’s breach of his duty under
this section.
7.2 Finding: The Tribunal finds that the Respondent/Appellant Third Party Mr Hogan had
complied with what is required under Section 77(2)(b) of the Act before bringing his
application to the PRTB.
Reasons:
1.Under Section 77(2)(b) the Third Party, Mr Hogan before making his application to the
RTB tried by different methods to communicate with Mr. Connolly about the behaviour of
his tenants in his apartment. From the evidence produced before the Tribunal Mr Hogan
took reasonable steps to resolve the matter. This did not resolve the behaviour of Mr.
Connolly’s tenants. However, the Tribunal is satisfied with the evidence produced by Mr
Hogan that he had contacted Mr. Connolly directly himself or indirectly, or through the
management company or through the agent of his own landlord. There was
uncontroverted evidence provided by Mr Hogan that not only was their behaviour
adversely affecting his life but he was also in fear of Mr Connolly’s tenants. In particular
the Tribunal refers to the incident when one of the Landlord’s tenants prevented him from
gaining access to the apartment block and gestured in a threatening manner. This
incident he reported not only to the management company but also to the Gardaí and his
own landlord’s agent. Mr Connolly in his direct evidence stated that when he visited the
tenant at his apartment with his two tenants he introduced himself as a director of the
management company. The Tribunal does not believe that is proper or correct that such
an approach ought to have been made by Mr Connolly to Mr Hogan on a Saturday night
of a bank holiday weekend.
2. Mr. Connolly said that he was not aware of any of the complaints that were made by
Mr Hogan. Mr Connolly has a duty to ensure that his tenants complied with their
obligations under the Act . It is not sufficient for him to state that it was his daughter that
dealt with the day to day affairs.
3. Mr Hogan gave evidence which was corroborated by his mother in her direct evidence,
that he had shown in January 2014 images of a website in which Mr Connolly’s tenants
were operating an advertised escort service from his apartment. The Landlord claimed
that he did not remember seeing these images or indeed being at the apartment of Mr
Hogan. The Tribunal accepts the evidence of Mr Hogan as being more credible and
accepts also which was further corroborated by his mother when Mr Connolly attended at
Mr Hogan’s apartment in March 2014 he referred to the images which he had seen in
January 2014 on her son’s laptop.
4.While the Tribunal accepts that the Landlord in his evidence said that he had the
apartment block under surveillance at different times notwithstanding this, it appears he
did not do anything to alleviate the difficulties that Mr Hogan was enduring as a result of
his tenants and /or their visitors/guests were causing him, through their anti-social
behaviour in the apartment block and its environs.
7.3 Finding The Tribunal finds that Mr Hogan the Respondent/Appellant Third Party
suffered stress and inconvenience resulting from the breach of the Landlords obligations
under Section 15 of the Act as a result of the behaviour of the tenants of Mr Connolly the
Appellant/Respondent Landlord and awards the Third Party the sum of €1,500.
Reasons.
1. When an allegation of anti social behaviour is brought before the RTB a heavy
burden of proof rests on the party bringing such allegations. In this instance the Tribunal
finds more credible the evidence which was produced before it by Mr Hogan. Indeed the
evidence that was given by Mr Hogan that when a party took place on the mezzanine of
the block, a guest of Mr Connolly’s tenants spat at him when he asked them to lessen the
noise. Normally a single incident does not constitute anti social behaviour this incident
taken together with the evidence of other incidents which Mr Hogan had given to the
Tribunal in his direct evidence are sufficiently serious to be deemed by the Tribunal when
taken together to constitute anti social behaviour and therefore in breach of Section
17(1)(b) of the Act.
8. Determination:
Tribunal Reference TR0116-001544
In the matter of Tom Connolly (Landlord) and Bryan Hogan (Third Party) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant/Respondent Landlord shall pay the sum of €1,500 to the
Respondent/Appellant Third Party within 28 days of the date of issue of the Order,
being damages for the Appellant/Respondent Landlord’s breach of duty owed to the
Respondent/Appellant Third Party in failing to enforce his tenants’ obligations, in
respect of the tenancy of the dwelling at 10 Palace Gardens, Dame Street, Dublin 2.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
15 April 2016.
Signed:
Orla Coyne Chairperson
For and on behalf of the Tribunal.

Crowley v Eastwood

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001578 / Case Ref No: 1015-21692
Appellant Tenant: Claire Crowley
Respondent Landlord: Patrick Eastwood
Address of Rented Dwelling: Basement Flat, Number 8 Synnott Place, Off Dorset
Street , Dublin 7,
Tribunal: Jack Nicholas (Chairperson)
Gerard Murphy, Dervla Quinn
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 16 March 2016 at 2:30
Attendees: Patrick Eastwood (Respondent Landlord)
Claire Crowley (Appellant Tenant)
Stephen Eastwood (Respondent Landlords
Representative)
In Attendance: DTI Stenographers.
1. Background:
On 14 October 2015 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 13/01/2016. The Adjudicator determined that in the matter of Clare
Crowley, Applicant Tenant and Patrick Eastwood, Respondent Landlord the Residential
Tenancies Board, in accordance with Section 121 of the Residential Tenancies Act, 2004,
determined that:
(1) The Notice of Termination served on 11 July by the Respondent Landlord on
the Applicant Tenant in respect of the tenancy of the dwelling at basement flat, 8
Synnott Place, Dublin 7 is valid.
(2) The Applicant Tenant and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 28 days of the date of
issue of this Order.
(3) The Applicant Tenant shall pay any further rent outstanding from 13 January
2016, at the rate of €120 per week or proportionate part thereof at the rate of €17.42
per day, unless lawfully varied, and any other charges as set out in the terms of the
tenancy agreement for each month or part thereof, until such time as she vacates the
above dwelling.
(4) The Respondent Landlord shall refund the entire of the security deposit of
€680 to the Applicant Tenant, upon the Applicant Tenant vacating and giving up
possession of the above dwelling, less any amounts properly withheld in accordance
with the provisions of the Act.
(5) The Applicant Tenant’s application in respect of standard and maintenance
and breach of landlord’s obligations is not upheld.
Subsequently the following appeal was received from the Tenant on 01 February 2016.
The grounds of the appeal were regarding the standard and maintenance of the dwelling,
invalid notice of termination and breach of landlord obligations. The appeal was approved
by the Board on 02 February 2016.
The RTB constituted a Tenancy Tribunal and appointed Gerard Murphy, Jack Nicholas,
Dervla Quinn as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Jack Nicholas to be the chairperson of the Tribunal (“the Chairperson”).
On 05 February 2016 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 16 March 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
The Appellant Tenant submitted medical documentation which was considered and
returned to her.
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 her case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant. The Chairperson said that members
of the Tribunal might ask questions of both Parties from time to time
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or Affirmation and be
recorded by the official stenographer present and he reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
He explained to the parties that the hearing before the Tribunal was a de novo hearing
which could be appealed to the High Court on a point of law only. He explained that
following the hearing, the Board would make a Determination Order which would be
issued to the parties.
The parties giving evidence were then sworn.
After the parties were sworn in the Appellant Tenant made an application for legal
representation. The Appellant Tenant explained that she had been advised that the PRTB
would provide legal representation to her. The Tribunal explained that this was not the
case but if she wished she could make an application for an adjournment to seek legal
representation. The Appellant requested an adjournment and relied upon medical
evidence to the effect that she was suffering from mental health difficulties. When asked
by the Tribunal to explain the steps she had taken before the hearing the Appellant
Tenant confirmed she had sought advice and could have brought witnesses but had
chosen not to do so. The Appellant Tenant stated that she had sought the advice of
Threshold on 4 or 5 occasions during the tenancy. The Respondent Landlord objected to
the adjournment on the basis that the matter had gone on too long, the standard and
maintenance of the property was under review by Dublin City Council and the next review
was at the end of March 2016.
Upon enquiry the Tribunal was satisfied that the Tenant had been informed by the office
of the RTB of the date of the hearing on 5 February 2016 which was adequate time in
which to arrange for legal assistance. The RTB had further informed the Appellant
Tenant in the Tribunal Procedures which the Appellant Tenant confirmed she had
received of her right to bring witnesses or assistance with her to the hearing. The letter
submitted by the Tenant as evidence of her medical difficulties did not state that the
Tenant was unfit to proceed with the hearing. The Respondent Landlord had referred to a
particular prejudice which would be suffered by him were the adjournment to be granted.
For these reasons the Tribunal refused the adjournment request and decided to proceed
with the hearing.
The Tribunal informed the parties of their decision not to grant the adjournment. The
Tenant was advised that the Tribunal would afford her as much time as she required
during the hearing to discuss everything she wished to explain and if she was having
difficulties at any stage in the proceeding she could renew her application for an
adjournment.
5. Submissions of the Parties:
The Appellant Tenant’s Case:
1. The Notice of Termination
The Appellant Tenant appealed the validity of the Notice of Termination served by the
Respondent Landlord on 11 July 2015.
2. The Standard and Maintenance of the Dwelling
The Appellant Tenant claimed the Respondent Landlord was in breach of the
requirements of the Residential Tenancies Act 2004 to maintain the standard and
maintenance of the dwelling. The Appellant Tenant relied upon two reports from Dublin
City Council as evidence of the poor condition of the dwelling. The Appellant Tenant
denied the Respondent Landlord had gone to any efforts to improve the property although
she did assert that she was not willing to let the Respondent Landlord into the property to
conduct repairs and maintenance.
3. Rent arrears
The Appellant Tenant accepted in evidence she had not paid rent since 6 June 2015 and
received €77 per week in rent allowance.
The Respondent Landlords’ Case:
1. The Notice of Termination
The Respondent Landlord relied upon the Notice of Termination as valid.
2. The Standard and Maintenance of the Dwelling
Each item contained on the reports from Dublin City Council dated 10 September 2015
was discussed with the Respondent Landlord.
i. The Respondent Landlord accepted there was a build up of miscellaneous builders
materials and rubbish in the rear yard and stated in mitigation that 3 skip loads of rubbish
had been removed from time to time (The Appellant Tenant accepted that occasionally
rubbish and waste was removed).
ii. The Respondent Landlord accepted that a number of lights on the fire alarm control
panel were still flashing and that there was no certificate for the fire detection and alarm
system and the emergency lighting system but claimed it was not possible to remedy this
situation as the Appellant Tenant was not providing access to the dwelling.
iii. The Respondent Landlord further accepted he had not obtained an Electro-Technical
Council of Ireland Periodic Inspection Report by a registered electrical contractor for the
electrical installation in the common areas of the house.
iv. The Respondent Landlord claimed that dampness and water marking at the front
door was as a result of water coming in from the granite steps above and he had not had
an opportunity to repair same because he could not access the dwelling. He asserted he
had changed the door and door frame and the Appellant Tenant accepted the door and
frame were changed but submitted that had been done prior to the report from Dublin City
Council.
v. The report from Dublin City Council made a number of other findings in respect of the
following:
a. The flooring in the front hallway;
b. Rubbish and miscellaneous waste in the front yard;
c. Handle in the living room window;
d. The heating facilities were not working in the front room (the Appellant Tenant added
the thermostat was not working in the back room);
e. The windows in the bedroom were in a poor state of repair;
f. There was a hole in the wall adjacent to the bed;
g. There was dampness at the wall to ceiling junction above the entrance to the door of
the bedroom’
h. The light bulb in the bathroom was uncovered;
i. The house did not contain a fire blanket;
j. A mains wired smoke alarm was not confirmed.
The Respondent Landlord’s submission in respect of the above complaints was that he
was not being afforded a chance to do the repair work by the Appellant Tenant. He further
blamed some damage including the windows on parties the Appellant Tenant was having.
3. Rent Arrears
The Respondent Landlord did not produce any evidence of rent arrears other than his
oral evidence. The exact figure for rent arrears was not provided and the Respondent
Landlord claimed that the Appellant Tenant was already €1,500.00 in debt on 6 June
2015. The Appellant Tenant accepts that rent has not been paid since that date.
6. Matters Agreed Between the Parties
1. The rent is €120 weekly.
7. Findings and Reasons:
Finding No. 1:
The Notice of Termination is invalid.
Reason:
In order to terminate a Part 4 tenancy for non-payment of rent a three step process must
be followed:
1. Under s.34 of the Residential Tenancies Act 2004 the Landlord must notify the tenant
of the failure to pay rent and must inform the tenant that the landlord is entitled to
terminate the tenancy if the failure is not remedied within a reasonable time specified;
2. Under s.67 where a tenancy is being terminated for non-payment of rent the landlord
must precede the notice of termination by a notification in writing to the tenant that an
amount of rent due has not been paid and 14 days elapse from the receipt of that notice
without the amount concerned having been paid to the landlord;
3. Finally, the landlord must serve a notice on the tenant which provides the tenant with
at least 28 days before the termination of the tenancy.
S.61 of the Residential Tenancies Act 2004 provides that a period of notice to be given by
the notice of termination concerned is a reference to such a period that begins on the day
immediately following the date of service of the notice. In short, the day of service is not
included in the calculation of the 28 days.
In the matter at hand the Notice of Termination was served on 11 July 2015 and the
Appellant Tenant was advised that the tenancy would terminate on 7 August 2015.
Excluding 11 July 2015 and including 7 August 2015 the notice of termination provided 27
days to the Appellant Tenant. Consequently, the Notice of Termination is invalid.
It is not necessary for the Tribunal to consider further the Respondent Landlord’s
compliance with steps 1 and 2 outlined above as the Notice of Termination is invalid.
However, it appears that the Respondent Landlord is relying upon a Notice to Quit as a
14 day warning letter and this also does not appear to be in compliance with the Act.
Finding No. 2:
The Respondent Landlord is in breach of s.12(1)(b) of the Residential Tenancies Act
2004 to carry out such repairs and maintain the standard of the dwelling. The Appellant
Tenant is in breach of s.16(b) and (e) of the Residential Tenancies Act 2004 to ensure no
act or omission results in the landlord failing to comply with his obligations under the Act
and to allow reasonable access to the Respondent Landlord to the dwelling for the
purposes of allowing any works to be carried out.
Reason:
The Respondent Landlord does not dispute the report from Dublin City Council and
accepts that works need to be done. However, the Respondent Landlord claims he has
not had an opportunity to work at the property because of the Appellant Tenants refusal
to provide access. The Appellant Tenant denies the Respondent Landlord has sought to
access the property and the Respondent Landlord failed to provide any written or
supporting evidence of requesting access to the basement.
On the basis of the evidence before the Tribunal and on the balance of probabilities the
Tribunal is satisfied that the Respondent Landlord has failed in his obligations to maintain
the dwelling to the requisite standard. Some of the works listed by the Dublin City Council
report which is 6 months old do not require access to the Appellant Tenant’s dwelling
such as the rear and front yard and the electrical report on the common areas.
Furthermore, whilst the Tribunal is satisfied the Respondent Landlord made some steps
to obtain access to the dwelling to conduct repair works the Tribunal is satisfied that any
such attempts were only made on a few occasions.
On the basis of the evidence before the Tribunal and on the balance of probabilities the
Tribunal is satisfied that the Appellant Tenant has on occasion refused the Respondent
Landlord access to the dwelling. S.16(b) and (e) of the Residential Tenancies Act 2004
require a tenant to ensure no act or omission results in the landlord failing to comply with
his obligations under the Act and to allow reasonable access to the Respondent Landlord
to the dwelling for the purposes of allowing any works to be carried out. Consequently,
this Tribunal finds that the Appellant Tenant is also in breach of her obligations.
Taking everything into account and the failure of both parties to comply fully with their
obligations under the Act, the Tribunal is satisfied that the Appellant Tenant is entitled to
damages in the sum of €500 for the Respondent Landlord’s failure in respect of the
standard and maintenance of the dwelling. The said sum takes into account the breach of
the Appellant Tenant’s obligations and had it not been for the Appellant Tenant’s breach
the sum awarded in damages would have been higher.
It is important to note at this juncture that as a result of the conclusion drawn at finding 1
above the tenancy is ongoing and both parties should remedy their breaches urgently.
Best practice dictates that the Respondent Landlord should notify the Appellant Tenant in
writing at least 48 hours beforehand when he intends to conduct the repair work and
await the Appellant Tenant’s consent to same.
Finding No. 3:
Rent arrears in the sum of €4,885.45 have accrued in respect of the Appellant’s tenancy
of the dwelling.
Reason:
On the basis of the evidence before the Tribunal and the balance of probabilities the
Tribunal is satisfied that rent arrears of €4,885.45 have accrued in respect of the
Appellant’s tenancy of the dwelling. The Tribunal is supported in this finding by the
Appellant Tenant’s submission that she has not paid rent since 6 June 2015. The
Respondent Landlord was present and prepared to meet the Appellant’s appeal rather
than seeking a determination for rent arrears and did not have the requisite evidence
before the Tribunal. In those circumstances, the Tribunal does not make a determination
in respect of rent arrears prior to 6 June 2015. The rent arrears determined of €4,885.45
is due from 6 June 2015 to the date of the hearing.
The rent arrears is calculated as follows:
• 6 June 2015 to 16 March 2016 being the date of hearing is 40 weeks and 5 days.
The rent is €120 per week. 40 weeks at €120 per week equals €4,800.00.
• The daily rate is calculated by working out the yearly rent and dividing it by 365. The
yearly rent is €120 by 52 (being the number of weeks in a year) equal to €6,240.00.
€6,240.00 divided by 365 (being the number of days in a year) is equal to €17.09 per day.
5 days rent at €17.09 equals €85.45. T
• The total figure for arrears of rent as at the date of hearing is €4,800.00 plus €85.45
equal to €4,885.45.
8. Determination:
Tribunal Reference TR0216-001578
In the matter of Claire Crowley (Tenant) and Patrick Eastwood, Patrick Eastwood
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The Notice of Termination served on 16 July 2015, by the Respondent
Landlord on the Appellant Tenant, in respect of the tenancy of the dwelling at the
Basement Flat, No 8 Synnott Place, Dublin 7 is invalid.
2. The Respondent Tenant shall pay the total sum of €4,385.45 to the
Respondent being rent arrears in respect of the tenancy of the above dwelling having
deducted the sum of €500.00 for the Respondent Landlord’s breach of his obligations
under the Act in respect of the standard and maintenance of the dwelling.
3. The Appellant Tenant shall pay the total sum of €4,385.45 to the Respondent
Landlord, at the rate of €35.00 per calendar week, and at the rate of €5.00 per day
where a full calendar week does not apply, to be paid with her weekly rent,
commencing on the 5th day of the next month after the issue of this Order.
4. The enforcement of the Order for such payment will be deferred and the total
sum owing will be reduced by the number of weekly instalments of €35.00 made to the
Respondent Landlord on each due date until the sum of €4,385.45 has been paid in
full;
5. For the avoidance of doubt any default in the payment of the weekly
instalments of €35.00 shall act to cancel any further deferral and the balance due at
the date of default shall immediately become due and owing to the Respondent
Landlord.
6. The Appellant Tenant shall also pay any further rent outstanding from 17
March 2016, at the rate of €120 per week, unless lawfully varied, and any other
charges as set out in the terms of the tenancy agreement for each week or part
thereof, until such time as she vacates the above dwelling;
7. The Respondent Landlord shall refund the entire of the security deposit of
€680 to the Appellant Tenant, on gaining vacant possession of the above dwelling,
less any amounts properly withheld in accordance with the provisions of the Act.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
18 April 2016.
Signed:

Doody v Frenett

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0815-001344 / Case Ref No: 0615-18796
Appellant Landlord: Andrew Doody
Respondent Tenant: Jean-Paul Frenett
Address of Rented Dwelling: 14 Dundrum Gate, Dundrum , Dublin 16, D16K271
Tribunal: John FitzGerald (Chairperson)
Gene Feighery, Thomas Reilly
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 25 January 2016 at 10:30
Attendees: Jean-Paul Frenett (Respondent Tenant)
Andrew Doody (Appellant Landlord)
In Attendance: Wordwave T/A DTI Stenographers
1. Background:
On 02 June 2015 the Tenant made an application to the Private Residential Tenancies
Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 29 July 2015. The Adjudicator determined that
1. The Applicant Tenant’s application under the grounds of standard and
maintenance of the dwelling and breach of Landlord’s obligations is not upheld.
2. The Applicant Tenant’s application under the grounds of breach of obligations for
failure to allow peaceful occupation is upheld.
3. The Respondent Landlord shall pay the sum of €500 to the Applicant Tenant,
within 30 days of the date of issue of the Order, being damages for breach of
landlord obligations in failing to allow peaceful occupation in respect of the tenancy of
the dwelling at 14 Dundrum Gate, Dundrum, Dublin 16.
Subsequently the following appeal was received from the Landlord on 31 August 2015.
The grounds of the appeal related to alleged breach of landlord obligations, and this was
approved by the Board at their meeting on 09 October 2015.
The PRTB constituted a Tenancy Tribunal and appointed John FitzGerald, Thomas J
Reilly and Gene Feighery as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed John FitzGerald to be the chairperson of the Tribunal (“the
Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 25 January 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd
Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present their case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and he reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123 (3) of the
2004 Act].
The Parties were then sworn in.
5. Submissions of the Parties:
Appellant Landlord’s Case:
Evidence of Andrew Doody
The Appellant Landlord stated that the many complaints raised by the Respondent
Tenant in relation to the tenancy had been dealt with extensively by the Adjudicator in her
report and he had no issue in relation to them, however he was fully dissatisfied with the
finding that he was in breach of his obligations by allegedly exerting pressure on the
Respondent Tenant to leave the dwelling. He rejected this finding entirely.
He stated that he had always dealt promptly and efficiently with any issues relating to the
standard and maintenance of the dwelling raised by the Respondent Tenant. He further
stated that he had never asked the Respondent Tenant to leave the dwelling nor had he
placed any pressure on him to go at any stage during the tenancy. He said that the
Respondent Tenants had terminated the fixed term tenancy of their own accord and with
28 days notice following an agreement reached between the parties and not on the basis
of any breach of landlord obligations.
In relation to the issue of a lack of hot water in the dwelling he told the Tribunal that he
had been contacted by Respondent Tenant over a bank holiday weekend in July 2014
when he was abroad. He said they reported that no hot water was flowing through the
dwelling. He said he immediately contacted his plumber who attended to the matter as
promptly as possible and identified the source of the the problem to be the heating
settings on the immersion for the large water tank. He said he considerd the matter to be
resolved however it later transpired that a readjustment to the settings failed to rectify the
matter and that further works were required to restore hot water to the dwelling. He
accepted that the Respondent Tenants had been without hot water for 16 days however
he emphasised that he had complied with his obligations by attempting to have the matter
attended to as soon as he was made aware of the problem.
He outlined that subsequent to the resolution of this issue he had received emails from
the Appellant Tenant seeking a once off reduction in their rental payment in lieu of the
inconvenience experienced by them during the period without hot water, however he said
he was not agreeable to this. He said that because he was not agreeable to this he
offered, by way of solution an option for the tenants to terminate the lease if they wished.
He said from this point on, relations began to sour and there were extensive discussions
between the parties about this matter and other issues arising in the dwelling about which
they were not happy. Despite this, the Respondent Tenants indicated that they wished to
remain in the dwelling but they continued to pursue a reduction in rent in lieu of the
inconvenience caused during the period when there was no hot water. He said he told
the Respondent Tenants that if they were unhappy, that they “could call it a day” however
he rejected that this constituted pressure or a breach of his obligations.
He stated that there were further issues raised by the Respondent Tenants relating to an
alleged sewage problem, a smell coming from the washing machine and the fact that the
leather couch left dirty marks on their clothes. He said that he attended to the alleged
sewage matter with the assistance of the Management Company and his plumber and he
was satisfied that no issue existed however he said that the Respondent Tenants were
dissatisfied with the outcome. In relation to the washing machine, the matter was
resolved by the Respondent Tenants themselves by running the machine at a hot
temperature with a proprietary cleaning tablet and in relation to the couch, he suggested
that they place a ‘throw’ on it.
He said that subsequent to the Respondent Tenants telling him that they were happy with
the dwelling he was very surprised when they contacted him telling him that they wanted
to leave. He said it was a fixed term tenancy and he sought 28 days notice from the
Respondent Tenants. He said that the tenancy was terminated by the tenants who were
not under duress as was evidenced by the notice of termination issued by the
Respondent Tenants. The Notice of Termination did not state that the tenancy was being
terminated arising from any breach of obligations.
Finally, the Appellant Landlord stated that he considered himself to be a reasonable
person and a compliant Landlord who dealt promptly with any issues as they arose. He
said he never wanted the tenants to leave the dwelling and he never exerted any
pressure on them to do so. He said he and was surprised when the Respondent Tenants
decided to leave of their own accord a month following the resolution of the hot water
matter. He said he had refunded the Appellant Tenants’ security deposit to them in full
following the month’s notice.
Respondent Tenant’s Case:
Evidence of Jean Paul Frenett
The Respondent Tenant stated that a number of issues arose in the dwelling during the
tenancy, however he sought to refer specifically to the two main issues, i.e. lack of hot
water and problem with the sewerage system.
Regarding the lack of hot water he described the distress and inconvenience caused
arising from the lack of this basic facility over an extended period of 16 days together with
the frustration of waiting at the dwelling for the Appellant Landlord’s plumber who failed to
attend at the appointed time. He said it was necessary for them to return home to Cork to
shower and carry out laundry. He said that he made the complaint about the water on 24
July and it was not resolved until 8 August 2015 when it was necessary for him to pay the
plumber himself. In the event that he did not pay the plumber, he said there would have
been a further delay in restoring the hot water. He said the Appellant Landlord deducted
the invoiced amount from their monthly rental payment.
He said that sewage from other apartments in the complex appeared in the WC’s in their
dwelling as a result of an anti-cycle effect. He said that tensions arose between the
Appellant Landlord and the Management company of the apartment complex as to who
had responsibility for resolving the matter but he conceded that both management and
the landlord carried out extensive investigations in an attempt to resolve the matter. The
plumbers who were looking into the matter appeared to be in disagreement as to whether
there was an issue or not, and in the interim he said his living conditions were most
unpleasant as they were directly affected by the odour. He alleged that the matter was
still not resoved when they vacated the dwelling.
He stated that the lack hot water had caused a strain in the relationship between himself
and his partner and they became unhappy in the dwelling. He said that a situation
developed where, when he raised any issues with the Appellant Landlord, his response
was that if they were unhappy in the dwelling they could leave. He said that their request
for a once off reduction in their rental payment following the lack of hot water soured
relations and the landlord advised them to if they were not happy with the apartment that
they should provide him with a notice in writing of their inention to leave. He drew the
Tribunal’s attention to an e-mail dated 7 August wherein the Appellant Landlord stated
that he (the Appellant Landlord) understood their frustration in relation to the water and if
they were unhappy and wished to leave, he would undertand.
The Respondent Tenant said that they began to feel unwanted and pressurised in the
tenancy following a number of e-mails and in particular a 45 minute phone call with the
Appellant Landlord wherein he alleged he was told that they ‘might be better off
somewhere else’. He said they issued the Appellant Landlord with the requested 28 day
notice and left the dwelling and found an alternative accommodation at higher rent
nearby. He confirmed to the Tribunal that the notice of termination did not cite a breach of
landlord obligations as the reason for terminating the tenancy.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The tenancy commenced on 10 July 2014.
2. The rent payable was €1,500 per month.
3. The deposit paid was €1,500.
4. There are no arrears of rent.
5. The tenancy terminated on 11 October 2014.
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.
Finding 1.
The Tribunal finds that the Landlord is in breach of his obligations under section 12 (1)(b)
of the Act arising from his failure to promptly carry out to the dwelling such repairs as
were necessary to ensure that the dwelling complied with any standards for houses in
relation to the basic provision of hot water to the dwelling. The Tribunal awards the
Respondent Tenants €400 in damages for this breach
Reason:
It is undisputed from the oral testimony and supporting documentary evidence of the
parties that the dwelling was without the basic facility of hot water for a period of 16 days.
The Appellant Landlord contended that he acted promptly by engaging a plumber to
attend to the problem however, 16 days is an unacceptable length of time for tenants to
be without this basic facility. It is further unacceptable that when the Appellant Tenants
expressed their frustration that the Landlord’s response was that he understood their
frustration but he was unwilling to recognise the level of distress and inconvenience
caused to the Respondent Tenants arising from his breach and he rejected their request
for financial recompense in lieu of such inconvenience.
Finding 2
The Appellant Landlord’s appeal in relation to a breach of his obligations under section 12
(1)(a) of the Act relating to lack of peaceful occupation in the dwelling is upheld.
It is clear from the evidence submitted to the Tribunal that the Landlord Tenant
relationship became strained between the parties during the period of the fixed term
tenancy, however there is nothing in the documentary evidence submitted, or in the oral
testimony provided by the parties to indicate that the Appellant Landlord exerted pressure
on the Respondent Tenants to terminate the tenancy. E-mail correspondence between
the parties indicate that the Appellant Tenants were satisfied with the dwelling at the
commencement of the tenancy however as the tenancy progressed they raised a number
of issues including, iter alia, lack of hot water, faulty sewerage system, insufficient water
pressure, smell from washer/dryer, staining on clothes from sofa, requested change from
existing double bed to king size bed to suit their mattress, request for sofa bed for second
bedroom, removal of some of the existing furniture in the dwelling, faulty electric socket,
replacement locks for bathroom and front door, faulty alarm, request for window cleaning,
extractor fan, unlevel fridge, maintenance of common area & bin collection. Despite
raising these issues with the Appellant Landlord, the Respondent Tenants stated that
they were happy in the dwelling and wished to remain there.
The Respondent Tenants stated that because the Appellant Landlord was unwilling to
allow a sum in damages for the lack of water for 16 days that relations soured between
them and they became unhappy in the dwelling. They said they felt unwanted in the
dwelling.
The Respondent Tenants made the decision to prematurely terminate the tenancy. With
the agreement of the Appellant Landlord, they issued him with a 28 day notice of
termination, which notice did not specify that the termination arose from any breach of
obligations on the Appellant Landlord’s part. The Appellant Landlord permitted the
Respondent Tenants to break their fixed term tenancy prematurely and he returned their
security deposit to them in full.
8. Determination:
Tribunal Reference TR0815-001344
In the matter of Andrew Doody (Landlord) and Jean-Paul Frenett (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Landlord’s appeal in relation to breach of his obligations to allow the
Respondent Tenants to enjoy peaceful and exclusive enjoyment of the dwelling is
upheld.
The Appellant Landlord shall pay the sum of €400 to the Respondent Tenants arising
from his breach of obligations under section 12 (1)(b) of the Act.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 06 February 2016.
Signed:
John FitzGerald Chairperson
For and on behalf of the Tribunal.
Jack Nicholas Chairperson
For and on behalf of the Tribunal.

Dowling v Chmiel

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1015-001428 / Case Ref No: 0915-20813
Appellant Landlord: Anne Dowling
Respondent Tenant: Alina Chmiel, Marek Chmiel
Address of Rented Dwelling: 20 Coppinger Wk, Blackrock , Dublin, A94EK76
Tribunal: Siobhan Phelan (Chairperson)
Peter Shanley, Mervyn Hickey
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2.
Date & time of Hearing: 07 January 2016 at 2:30
Attendees: Fergal Hopkins (Representative of Appellant
Landlord)
Eileen Casey, Casey Kennedy Properties
(Representative of Appellant Landlord)
Alina Chmiel (Respondent Tenant)
John Ryan (Representative of Respondent
Tenant)
In Attendance:
Representative of DTI LLC, Stenographers
1. Background:
On 09 September 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 30 September 2015.
The Adjudicator determined that The Notice of Termination served on 12th August 2015
by the Respondent Landlord on the Applicant Tenants in respect of the tenancy of the
dwelling at 20 Coppinger Walk, Blackrock, County Dublin was invalid because it gave a
termination date more than six months after the commencement of a new Part IV
tenancy.
Subsequently the Landlord appealed against this finding.
The PRTB constituted a Tenancy Tribunal and appointed Peter Shanley, Siobhan Phelan
and Mervyn Hickey as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Siobhan Phelan to be the chairperson of the Tribunal (“the Chairperson”).
On 20 November 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 07 January 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd
Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
PRTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the Parties to identify themselves and to identify in what capacity
they were attending the Tribunal.
The Chairperson confirmed with the Parties that they had received the relevant papers
from the PRTB in relation to the case and that they had received the PRTB document
entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant Landlord in this case) would be invited to present
their 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.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
She advised the Parties that any member of the Tribunal may from time to time ask
questions when the need arose.
The Chairperson stressed that all evidence would be taken on oath and be recorded by
the official stenographer present and she reminded the Parties that knowingly providing
false or misleading statements or information to the Tribunal was an offence punishable
by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only (pursuant to section 123(3) of the
Residential Tenancies Act, 2004, hereafter referred to as the RTA).
The Parties were then sworn in.
Before proceeding to hear evidence, the Chairperson informed the parties that if, at any
stage, it seemed that they might be able to resolve their dispute by agreement, the
Tribunal would facilitate any such negotiations
5. Submissions of the Parties:
Appellant Landlord’s Submissions
Validity of Notice of Termination
The Appellant Landlord’s representative referred to section 42 of the Act and pointed out
that there is no requirement in the Act that the termination date fall within six months of
the commencement of a new Part IV tenancy so long as the Notice of Termination was
served within six months. He pointed out that, as permitted by the Act, the Appellant
Landlord had allowed more than the 112 days’ notice which is required under the Act on
termination of a Part IV tenancy but where the Notice of Termination was served within
six months of the new Part IV tenancy commencing this did not affect the validity of the
Notice. It was contended on behalf of the Appellant Landlord that the Adjudicator had
erred in the construction of section 42 of the Act and by concluding that it was not a
termination in accordance with section 42, wrongly required the Respondent Landlord to
state a reason for the termination in the Notice of Termination. The Appellant Landlord
contended that the Notice of Termination was valid in accordance with the requirements
of section 42 of the Act and that there was no requirement to provide a reason for the
termination in the Notice of Termination in circumstances where the Notice was served
within six months of the commencement of a new Part IV tenancy.
Penalisation
In relation to the claim that the Notice of Termination was served as a form of penalization
of the Respondent Tenant because they had succeeded on a rent review claim before the
PRTB, the Appellant Landlord’s agents pointed out that the Landlord had not appealed
against the Adjudicator’s findings but had complied with them.
The Tribunal was told that the Appellant Landlord was a commercial landlord with several
properties and there had never been any ill-feeling towards the Respondent Tenants in
this case. The Tribunal was told that the decision to terminate was a business one and
was not directed personally to the Respondent Tenants. The Tribunal was further
informed that there was a mortgage on the property that was not currently being met by
the rental income generated. The Appellant Landlord’s representatives confirmed that the
market rent for the property would be €1,450 per month, which was more than the rent
currently being paid by the Respondent Tenants.
It was stated that in serving the Notice of Termination the Appellant Landlord was merely
exercising her statutory entitlement to recover vacant possession of the dwelling in
accordance with the law. It was confirmed that the timing of the service of the Notice of
Termination was entirely coincidental and there was a limited window within which the
Notice could be served and the Appellant Landlord was obliged to serve at that time if she
were to avail of her statutory entitlement to terminate in accordance with section 42 of the
Act.
When it was put to the Appellant Landlord’s representatives that the timing of the service
of the Notice of Termination might suggest penalisation, they referred the Tribunal to the
history of the tenancy and the fair manner in which the Landlord had treated rent since
the commencement of the tenancy. The Tribunal was told that rent was reduced by
agreement after 2011 when the market came down. The Tribunal was told that when the
market improved, the Landlord did not immediately seek an increase. Rent was set at a
rate in 2011 and when the market came down, rent was reduced. As for the tenant’s
actions in calling in the Council in respect of conditions, it was stated that the Landlord
had no difficulty with a tenant raising issues which required to be dealt with. It was
contended that over the course of the relationship the Landlord had been fair to the
tenants.
Respondent Tenants’ Submissions
The Respondent Tenants’ representative, Mr. Ryan, told the Tribunal that the parties had
enjoyed an excellent relationship until April, 2015 when notice was served of an intention
to increase the rent to €1500 per month. The Respondent Tenants could not afford this
level of rent and sought a review of the proposed rental increase by the PRTB. The PRTB
set the new rent at less than the level sought by the Landlord and ordered damages in
respect of previous overpayment and the condition of the property.
Validity of Notice of Termination
Then on the 14th of August, 2015, a Notice of Termination was received. Mr. Ryan told
the Tribunal that the date specified as the termination date on the said Notice of
Termination was the 3rd December 2015. He pointed out that the Notice provided for a
termination date outside the first six month period of the further Part 4 tenancy and he
contended that accordingly the termination notice was invalid. Although the Notice of
Termination was served within six months of the commencement of a new Part IV tenant,
the Respondent Tenants contended that it was not valid unless the termination date also
fell within six months of the commencement.
The Respondent Tenants’ attention was drawn to the wording of section 42 and they
were asked to identify where in the section or in the Act it was stated that the termination
date must be within six months of the commencement of the new Part IV tenancy. The
Respondent Tenant did not seek to rely on any particular provision but sought to rely on
the decision of the Adjudicator which had construed section 42 as requiring the
termination date to fall within six months of the termination of the Part IV tenancy.
The Respondent Tenants’ agent pointed out that to construe section 42 otherwise
resulted in a prolonged period of uncertainty for the tenant because it could take nearly a
year from the commencement of a new Part IV tenancy before a termination date would
arrive where Notice of Termination was not served until the end of the six month period.
It was argued that the Legislature had not intended the section to operate to leave the
tenant in a state of uncertainty over a prolonged period.
Penalisation
It was contended on behalf of the Respondent Tenants that they felt victimised by the
process. It was pointed out that this was their third time to attend with the PRTB (two
adjudications and an appeal to the Tribunal) and the process had been very protracted. It
was suggested that the Appellant Landlord’s motivation in serving the Notice of
Termination was questionable as being a penalisation of the Respondent Tenants in
circumstances where in April, 2015, an increase in rent was sought and when this
increase was not allowed by the PRTB in June, 2015, the Appellant Landlord sought
possession of the property in August, 2015. Emphasis was placed on the proximity of the
adjudicator’s findings in June, 2015 and the service of the Notice of Termination in
August, 2015. The Respondent Tenants confirmed that they were not relying on any
other factor, other than proximity in time, to support a case of penalisation.
The Respondent Tenant pointed out that she had always complied with the spirit of the
Act and that she would like matter to be resolved as soon as possible as she found the
uncertainty very stressful.
6. Matters Agreed Between the Parties
Before proceeding to take evidence, the Chairperson canvassed areas that were agreed.
It emerged that there were significant areas of agreement as follows:
1. The tenancy commenced on the 19th February 2011 in respect of a property at 20
Coppinger Walk, Blackrock, Co Dublin;
2. The parties had entered into a lease agreement of the dwelling on that date for a
period of 12 months at the monthly rent of €1100;
3. A deposit of €1100 was paid;
4. The tenants continued in occupation after the expiry of the fixed term;
5. The current rent is €1150 per month;
6. The tenants are still in occupation of the dwelling;
7. A proposed increase in rent was referred to the PRTB by the tenant and other matters
were raised in the course of same in relation to the condition of the dwelling. The
adjudicator issued findings in favour of the Applicant Tenant at the end of June, 2015
whereby rent was not increased to the extent sought by the Respondent Landlord and
damages were awarded to the Applicant Tenant in respect of the condition of the
dwelling;
8. There was no appeal against the adjudicator’s findings and the Landlord had complied
with the determination order and had paid damages to the tenant as ordered;
9. A Notice of Termination was served on 12th August 2015 in respect of the tenancy
under section 42 of the Act;
10. The said Notice of Termination was served within 6 months of the commencement of
a new part IV tenancy;
11. It was agreed that there were two issues for the Tribunal, namely:
(a) whether the Notice of Termination was valid in circumstances where, although it was
served within six months of the commencement of a new tenancy, the termination date
specified fell outside the period of six months after the commencement of a Part 4
tenancy; and
(b) whether the service of the Notice of Termination constituted penalisation.
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 therefore are set out
hereunder.
Findings 7.1: The Notice of Termination dated the 12th of August, 2015 is valid and the
Respondent Tenants are over-holding.
Reasons
Section 42 of the Act provides that not later than 6 months from its commencement, the
landlord may serve a notice of termination in respect of a further Part IV tenancy. The
period of notice given by that notice of termination shall not be less than 112 days. A
landlord is entitled to terminate a tenancy within the first six months of a further Part IV
tenancy without giving a reason. The landlord served a Notice of Termination in this case
on the 12th August 2015, which provided that, the tenancy would terminate on the 3rd
December 2015. The termination date does not fall within the first six months of the
commencement of a further Part IV tenancy. However, section 42 of the Act provides for
the service of a Notice of Termination at any time within the first six months and expressly
requires the giving of no less than 112 days’ notice with the result that it is would be
illogical to conclude that the termination date is required to fall within six months of the
commencement of the further Part IV tenancy. Furthermore, the Act does not require that
the termination date notified be within the said six months in order to effect a valid
termination under that section. Where Notice of Termination is served in accordance with
section 42, there is no requirement on the landlord to specify a reason for the termination
in the notice. The Notice of Termination is therefore valid.
Finding 7.2: The Appellant Landlord did not penalise the Respondent Tenants in breach
of section 14 of the Act
Reasons
Section 14 of the Act prohibits penalisation and provides that a landlord of a dwelling shall
not penalise a tenant for, inter alia, (a) referring any dispute between the tenant and the
landlord to the Board for resolution under Part 6 or (b) giving evidence in any proceedings
under Part 6 to which the landlord is a party. The section provides that a tenant is
penalised if the tenant is subjected to any action that adversely affects his or her enjoying
peaceful occupation of the dwelling concerned and the action may constitute penalisation
even though it consists of steps taken by the landlord in the exercise of any rights
conferred on him or her by or under this Act, such as, in this case the service of a Notice
of Termination.
Not every act can be considered to constitute penalisation where a tenant has referred a
dispute to the PRTB. There is a continuing relationship of landlord and tenant in being
and it cannot be presumed that any action adverse to a tenant is intended to penalise the
tenant.
The Act provides some assistance as to when an action which is adverse to the tenant
may be considered to be penalisation and directs that reasonable inferences may be
drawn having regard to matters such as:
(a) the frequency or extent to which the right is exercised in relation to the tenant;
(b) the proximity in time of its being so exercised to the tenant’s doing the relevant thing
referred to in subsection (1), and;
(c) any other relevant circumstances.
In all the circumstances of this case, the Tribunal does not consider that a reasonable
inference of penalisation can be drawn. In reaching this conclusion the Tribunal notes
that the Appellant Landlord complied with the findings of the PRTB on the previous
adjudication, the letting is conducted in an arms-length and business-like manner without
personal dealings between the parties and the Respondent Tenants could not identify any
other factor, other than the proximity in time to the findings of the adjudicator in June,
2015 of the service of the Notice of Termination in August, 2015, to suggest penalisation.
Given that there is a limited time period only within which a landlord may serve a Notice
of Termination in accordance with section 42 of the Act, the Tribunal does not consider it
reasonable to conclude in this case on the basis of proximity in time alone, that the
termination of the tenancy more than six weeks after an adverse finding by the PRTB,
constituted an act of penalisation. The Respondent Tenants’ complaint in therefore not
upheld.
8. Determination:
Tribunal Reference TR1015-001428
In the matter of Anne Dowling (Landlord) and Alina Chmiel, Marek Chmiel (Tenant)
the Tribunal in accordance with section 108(1) of the Residential Tenancies Act
2004, determines that:
1. The Notice of Termination dated the 12th of August, 2015, in respect of the tenancy
at 20 Coppinger Walk, Blackrock, Co Dublin is valid;
2. The Respondent Tenants and all persons residing in the above dwelling shall vacate
and give up possession of the above dwelling within 42 days of the date of issue of the
Order;
3. The Respondent Tenants shall pay rent at a monthly rate of €1,150.00, or the daily
rate of €37.80 per day, or proportionate part thereof unless lawfully varied, from the 7th
of January, 2016 until the date they vacate and give up possession of the dwelling;
4. The Respondent Landlord shall refund the entire of the security deposit of €1100 to
the Appellant Tenants on gaining vacant possession of the above dwelling, less any
amounts properly withheld in accordance with the provisions of the Act.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 17/01/2016.
Signed:
Siobhan Phelan Chairperson
For and on behalf of the Tribunal.

 

 

 

Driver v Burke & Browne

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001437 / Case Ref No: 0915-20903
Appellant Landlord: Marlene Linnie Driver, Marlene Driver, Gerard
Driver
Respondent Tenant: Hayley Burke, Alan Browne
Address of Rented Dwelling: 8 Oak House, Carrickmines Green, Carrickmines ,
Dublin 18, D18K821
Tribunal: James Egan (Chairperson)
Siobhan Phelan, Andrew Nugent
Venue: Tribunal Room, PRTB, O’Connell Bridge House,
D’Olier Street, Dublin 2
Date & time of Hearing: 15 February 2016 at 2:30
Attendees: Marlene Driver (Appellant Landlord)
Gerard Driver (Appellant Landlord)
Alan Browne (Respondent Tenant)
Hayley Burke (Respondent Tenant)
Kevin Delappe (Respondent Tenants
Representative)
In Attendance: DTI Stenographers
1. Background:
On 14 September 2015 the Tenant made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred
to an Adjudication which took place on 30 September 2015. The Adjudicator determined
that:
The Respondent Landlords shall pay the total sum of €1400 to the Applicant
Tenants, within 56 days of the date of issue of this Order, being damages for breach
of landlord obligations under s. 12(1)(b) of the Residential Tenancies Act 2004 for
failure to carry out necessary repairs, in respect of the tenancy of the dwelling at 8
Oak House, Carrickmines Green, Carrickmines, Dublin 18.
Subsequently the following appeal was received from the Landlord on 06 November
2015. The grounds of the appeal was Standard and maintenance of dwelling. The appeal
was approved by the Board on 20 November 2015
The PRTB constituted a Tenancy Tribunal and appointed James Egan, Siobhan Phelan,
Andrew Nugent as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed James Egan 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 15 February 2016 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:
1. PRTB File
3. Documents Submitted at the Hearing Included:
PRTB case file 1, 2 and 3 and video of flooring submitted in advance of hearing date.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant Landlord) would be invited to present her case
first; that there would be an opportunity for cross-examination by the Respondent Tenant;
that the Respondent would then be invited to present his case, and that 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 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 [reference section 123(3) of the 2004
Act].
5. Submissions of the Parties:
Appellant Landlords’ Submission:
The appellant landlords stated that they were bearing the brunt of communication issues
between the respondent tenants and the estate agent who they had hired to manage the
letting. The appellant landlords stated that they tried to resolve the problems at the
dwelling by engaging the insurance company, the letting agent, various builders and the
management company.
The appellant landlords stated that they understood the frustration of the respondent
tenants. Further, the issues at the dwelling arose when their newborn child was in her
infancy. In respect of the adjudication, the appellant landlords believed that their interest
could be adequately represented by their agents and that they did not decide ‘just not to
appear’.
The appellant landlords referred to the timeline in case file three of the tribunal
documentation. They were unaware of any complaint at the dwelling until 22nd July 2015.
Prior to that date, their agents had not advised them of the issues raised by the
respondent tenants. One of the appellant landlords attended at the dwelling to ascertain
the nature and extent of the problem.
On the 27th July 2015, a plumber (sent by the estate agent) attended at the dwelling and
stated in an email:
‘Due to the amount of water in the floor I believe the issue may be coming from the
neighbouring property but we need to test the washing machine fully before issuing
instruction to the management company regarding the neighbouring property and
processing an insurance claim on the block insurance.’
The appellant landlords submitted that the leak came from the property next door to the
dwelling (number 9). This gave rise to a claim being made under the apartment block
insurance policy. This policy contained an excess provision of €1,500.00 which restricted
the appellant landlord’s ability to carry out the necessary repairs and to provide
compensation. The appellant landlords relied on a letter dated the 12th August 2015 from
a plumbing company which stated:
‘on inspection we found the bath and shower seals to be the cause of the leak.’
This inspection referred to the leak in number 9 and was used to initiate the claim from
the block insurance policy. The appellant landlords tried to contact the builder
recommended by the management company to fix a date for restoring the dwelling. The
appellant landlords claimed that they had difficulty in reaching the builder. They found
another builder who advised that the works were dependent on investigating the cause of
the leak.
The original builder made contact with the appellant landlords and he confirmed his
availability for the project. The builder asked for access on the 18th August 2015 to
commence works however this was denied by the respondent tenants. The appellant
landlords made attempts to offer compensation of two weeks rent to the respondent
tenants however this was deemed insufficient. The appellant landlords were frustrated at
the delay in the insurance claim being resolved at this stage and they organised a further
inspection on the 19th August 2015. The appellant landlords received confirmation that
cover was in place on the 25th August 2015 and they advised the respondent tenants that
works were ready to commence on the 28th August 2015. The respondent tenants stated
that the notice was insufficient. According to the work schedule, the works entailed lifting
and removing the floorboards, drying the apartment and replacing the floorboards. The
appellant landlords submitted that the tenants would not have to leave the dwelling during
this time. Both parties were aggrieved by the delay in resolving the matter and eventually
they agreed to terminate the tenancy.
The appellant landlords wanted the tenancy to continue because they were on one
income and the insurance policy was inadequate in respect of addressing the loss
because of the high excess. The appellant landlords were advised that they could not
claim compensation (for the tenants) under the insurance policy because the dwelling
was not uninhabitable. The final quotation for the works was for €3,500.00.
In their closing submission, the appellant landlords stated that it was established by the
insurance company that the leak had emanated from number 9. The loss was covered by
the block insurance policy and this fact could not be disputed by the respondent tenants
in attempting to lay blame on the appellant landlords. The block insurance claims process
was complicated and could take between 6 to 8 weeks to resolve. Unfortunately, this
impacted the respondent tenants but the appellant landlords could not control this
process. This was outside the control of the appellant landlords and without confirmation
of cover they were unable to address the issues at the dwelling.
Respondent Tenants’ Submission:
The respondent tenants stated that the leak was inadequately investigated by the
appellant landlords after the original notification date of the 18th July 2015. The
respondent tenants stated that they were living in a dwelling where the floorboards had
become warped and saturated with water for 8 weeks.
Following the notification of the leak, the respondent tenants were informed by agents, or
tradespeople engaged on the appellant landlord’s behalf, that the leak had come from
number 9. The respondent tenants disputed this because it was evident to them that the
leak was coming from within the dwelling. The respondent tenants stated that the leak
continued in the dwelling even when the leak in number 9 was fixed on or around the 10th
August 2015.
The respondent tenants claim a refund of the two months rent (€2,200.00) for the time
that they resided in the dwelling when the leak was ongoing. During this time, they had
inadequate access to the kitchen and sitting room areas and this reduced their enjoyment
of the dwelling to a substantial degree. The respondent tenants stated that they were
living out of their bedroom because of the leak problem in the kitchen.
The respondent tenants discovered on the 4th September 2015 that the cause of the leak
was identified as coming from the dishwasher by the appellant landlords’ agent’s
maintenance man. The respondent tenants directed the tribunal to page 45 of 103 in case
file 1 which established that a leak was coming from the dishwasher in the dwelling. The
respondent tenants stated that this was the first occasion that any form of investigation
was conducted. This confirmed their suspicion that the leak had come from the dwelling
and not from number 9. The respondent tenants agreed that the tenancy would be
terminated with the appellant landlords on the 12th September 2015.
In respect of the alleged failure to grant access, the respondent tenants stated that it was
unreasonable to expect them to allow access to builders with a 48-hour notice period.
The respondent tenants had discussed the matter with the builder who advised them that
the works would take two weeks. In those circumstances, the respondent tenants
believed that the timeframe was insufficient for them to make alternative arrangements for
accommodation. The respondent tenants did not agree that they could be in the dwelling
whilst the works were ongoing because this involved removal works, drying out of the
dwelling and the further restorative works.
The respondent tenants stated that they facilitated all parties in seeking access to the
dwelling over the course of the 8 week period. The parties that attended on at least one
occasion at the dwelling over the timeframe included the appellant landlords, plumbers,
maintenance people, builders, insurance company personnel and management company
staff. In that regard the respondent tenants maintained that they were reasonable to all
parties because there were multiple visits over the timeframe without any works or
adequate investigations being conducted.
6. Matters Agreed Between the Parties
The address of the dwelling was agreed. Rent was €1,100.00 per month and a deposit in
the amount of €1,100.00 was paid at the commencement of the tenancy. The tenancy
commenced in or around the 25th January 2015 and terminated on the 12th September
2015. The deposit was returned to the dwelling following the termination of the tenancy. It
was agreed that there was water damage at the dwelling but the underlying cause was in
dispute.
7. Findings and Reasons:
Finding:
The Appellant Landlords breached the obligations under s. 12 (1) (a) and (b) of the
Residential Tenancies Act 2004 to 2009, as amended.
Reasons:
It was agreed that there was substantial water damage in the dwelling. Under section 12
(1) (a) of the Act, it states that a landlord shall allow the tenant of the dwelling to enjoy
peaceful and exclusive occupation of the dwelling, Under section 12 (1) (b) the Act states
that a landlord shall carry out to ‘(i) the structure of a dwelling all such repairs as are, from
time to time necessary and ensure that the structure complies with any standards for
houses for the time being prescribed under section 18 of the Housing (Miscellaneous
Provisions) Act 1992 and (ii) the interior of the dwelling all such repairs and replacement
of fittings as are, from time to time, necessary so that interior and those fittings are
maintained in, at least, the condition in which they were at the commencement of the
tenancy and in compliance with any such standards for the time being prescribed.’
The evidence demonstrated the fittings of the dwelling (in the living and kitchen areas)
were in substantial disrepair for at least 6 weeks. This was borne out by the photographs
submitted in advance of the tribunal and the evidence of the Respondent Tenants. The
Appellant Landlords stated that the dwelling remained inhabitable however this was a
reference to the term under the insurance policy which was not produced at the tribunal.
The Appellant Landlords maintained that the Respondent Tenants could still live at the
dwelling. However, the Respondent Tenants could not use the living area for its intended
purpose and the kitchen floor was badly damaged. The Respondent Tenants’ occupation
was limited to the bedroom having regard to the condition of the living area and the
kitchen.
The Tribunal accepts that the Respondent Tenants paid the rent and facilitated the
Appellant Landlords’ agents in their access to the dwelling on numerous occasions to
address the issues. The Tribunal notes that the Respondent Tenants were unavailable on
two dates to allow access to builders. These occasions appears to have been exceptions
having regard to the level of access allowed to the various parties during the relevant
timeframe.
The Tribunal notes that the Appellant Landlords described themselves as accidental
landlords however the obligations apply to all categories of landlord. The tribunal has
sympathy for their position as when something goes wrong, such as in the current case, it
can be difficult for a landlord to know how to address the problem. The Appellant
Landlords have a duty to maintain the fittings to the standard in which they were in at the
commencement of the tenancy. To allow the problem to continue whilst the outcome of
an insurance claim is determined is a breach of obligations because the respondent
tenants did not have peaceful occupation of the dwelling during this time.
The Tribunal accepts that the dwelling whilst habitable, under the strictest sense of the
term, was unsuitable for the tenancy due to the damage caused and this affected the
Respondent Tenants occupation of the dwelling to a substantial degree. It was not
disputed that the sitting room was unsuitable for everyday use or that the kitchen floor
was drenched and the flooring severely buckled.
In circumstances where the kitchen floor was severely buckled, it should have been
evident that the source of the leak required adequate investigation. The Tribunal finds
that this investigation was not adequately completed because the Respondent Tenants
clarified that a proper investigation was not carried out. The plumber who attended at the
dwelling on the 27th July 2015, 9 days after the initial notification, stated that the washing
machine would have to be ruled out as a cause and he recommended sending in an
appliance specialist. There was insufficient evidence at the tribunal of an investigation
being carried out after this date to establish the root cause of the leak within the dwelling.
The agents on behalf of the Appellant Landlords remained convinced that the leak was
from the neighbouring property. Apportioning the liability to the occupier of the
neighbouring dwelling was of little benefit to the Respondent Tenants as they continued
to live in a dwelling that was in poor condition compared to the commencement of the
tenancy.
The Tribunal is satisfied that a substantive cause of the water damage came from within
the dwelling having regard to the email at page 45 of 103 of case file 3 which set out that
the dishwasher was the cause of the leak at the dwelling and the fact that the water
problem remained for a considerable period of time after the leak in the adjoining dwelling
was fixed. The Tribunal is unable to overlook this evidence, although it accepts that there
may have been a leak from the neighbouring property, that contributed to the damage.
The Agent for the Appellant Landlords highlighted that a claim on a block insurance policy
could take up to 8 weeks to settle. Furnished with this knowledge, it is difficult to see why
any tenant should be expected to remain in a dwelling that is, for the most part, not fit for
the purpose during this time whilst honouring their obligation to pay rent under section 16
of the Act. It follows that the respondent tenants should be entitled to a refund of the rent
paid during the time.
The Tribunal considers that the Respondent Tenants should be refunded a portion of the
rent paid to the Appellant Landlords whilst the dwelling was unsuitable for the tenancy.
The Tribunal finds that a refund of €1,400.00 as a portion of the rent paid to the Appellant
Landlords whilst the dwelling was reduced to a bedroom and bathroom is a reasonable
amount. The remainder of the dwelling was inaccessible to enjoy any reasonable level of
occupation having regard to the condition of the dwelling compared to its condition at the
commencement of the term.
8. Determination:
Tribunal Reference TR1115-001437
In the matter of Marlene Linnie Driver, Marlene Driver, Gerard Driver (Landlord) and
Hayley Burke, Alan Browne (Tenant) the Tribunal in accordance with section 108(1)
of the Residential Tenancies Act 2004, determines that:
The Appellant Landlords shall pay the total sum of €1,400.00 to the Respondent
Tenants, within 28 days of the date of issue of the Order, being damages for breach of
landlord obligations under s. 12(1)(b) of the Residential Tenancies Act 2004 for failure
to carry out necessary repairs, in respect of the tenancy of the dwelling at 8 Oak
House, Carrickmines Green, Carrickmines, Dublin 18.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 14 March 2016.
Signed:
James Egan Chairperson
For and on behalf of the Tribunal.

Dumitru v Soroka

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1215-001506 / Case Ref No: 0915-21104
Appellant Landlord: Adrian Dumitru
Respondent Tenant: Anna Soroka, Ieva Dimskyte
Address of Rented Dwelling: 33 Adamstown Avenue, Lucan , Dublin,
Tribunal: Louise Moloney (Chairperson)
Finian Matthews, John Keane
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 13 May 2016 at 2:30
Attendees: Anna Soroka (Respondent Tenant)
Assan Khan (Appellant Landlord`s Representative)
In Attendance: Stenographer
1. Background:
On 21 Septmeber 2015 the Tenant made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 76 of the Act. The matter was referred to an
Adjudication which took place on 25 November 2015. The Adjudicator determined that:
The Respondent/Applicant Landlord shall pay the total sum of €1,100 to the
Applicant/Respondent Tenants, within 14 days of the date of issue of this Order,
being the balance of the unjustifiably retained security deposit of €1,200 having
deducted €100 in damage to the dwelling in excess of ordinary wear and tear in
respect of the tenancy of the dwelling at 33 Adamstown Avenue, Lucan, County
Dublin.
Subsequently the following appeal was received from the Landlord on 15 December
2015. The grounds of the appeal are Deposit retention, Damage in excess of normal wear
and tear and Rent arrears. The appeal was approved by the Board on 22 December 2015
The RTB constituted a Tenancy Tribunal and appointed Louise Moloney, Finian
Matthews, John Keane as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Louise Moloney 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 13 May 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
– 45 undated photographs were submitted by the Appellant Landlord`s Representative.
– An email dated 18 June 2014 to the Appellant Landlord from his Agent with one copy
photograph of the stairs in the dwelling was submitted by the Appellant Landlord`s
Representative.
– A printout of an online banking payment of 760.00 euro to Brookwood house made on
the 9 July 2014 was submitted by the
Appellant Landlord`s Representative.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. She 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 while the
Tribunal Hearing was a formal procedure the Tribunal would seek to be as informal as
was possible; that the person who appealed (the Appellant Landlord) would be invited to
present his case first including the evidence of any witnesses; 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, including the evidence of any witness,
and that there would be an opportunity for cross-examination by the Appellant Landlord.
She said that members of the Tribunal might ask questions of the Parties from time to
time.
The Chairperson explained that following this, the Appellant Landlord and the
Respondent Tenant would be given an opportunity to make a final submission.
She stressed that all evidence would be taken on oath or affirmation and would be
recorded by the official stenographer present, she reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 and up to 6 months imprisonment or both. The
Chairperson drew the Parties attention to Section 7 of the Tribunal Procedures. She
asked the Parties if they had any queries about the procedure, there were no queries.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The Persons giving evidence and the Interpreter were then sworn in.
5. Submissions of the Parties:
APPELLANT LANDLORD`S CASE:
The Appellant Landlord`s Representative said that after the previous tenant in the
dwelling left at the end of May 2014 the dwelling was cleaned and repainted. He said that
the dwelling was in good condition at the commencement of the tenancy in the dwelling
on the 3 July 2014, that he had inspected the dwelling in or about the 2 July 2014 and the
dwelling was in good working order. He said he did not have any receipts in respect of the
work done in the dwelling prior to the tenancy. He confirmed that the dwelling was let
through Agents to the Respondent Tenants. When asked about the Respondent
Tenant`s email of 3 July 2014 to the Appellant Landlord complaining about the condition
of the dwelling he queried whether this email had been sent to or received by the
Respondent Landlord`s Agent given that no response was made by the Agent. He
referenced emails on the RTB file which had been sent by the Appellant Landlord to his
Agent but said he did not have any written communication with the Respondent Tenant
concerning her complaint about the condition of the dwelling at the commencement of the
tenancy. In response to a question he confirmed that furniture referenced in emails
between the Respondent Landlord and his Agent dated 8 July 2014 at pages 55 and 56
of 71 on the RTB file referenced furniture taken out of the dwelling and furniture put into
the dwelling.
The Appellant Landlord`s Representative said that the dwelling was inspected at least
four times during the tenancy when he or the Appellant Landlord went to pick up mail and
to inspect the dwelling. He said that he had noticed that the dwelling was not clean. He
said also there was an issue during the tenancy with water overflowing in the downstairs
toilet, that the Respondent Tenant`s boyfriend had turned off a valve to the water supply
which caused a problem with the boiler which became noisy as the pump was pumping
air instead of water and this had to be reversed. He said that at the commencement of
the tenancy there was a carbon alarm in the dwelling as were a table and chairs in the
kitchen.
He referenced emails on the RTB file between the Appellant Landlord and his Agent
concerning new furniture for the dwelling.
The Appellant Landlord`s Representative accepted that water charges arising during the
tenancy were not the Respondent Tenant’s `s obligation.
He said that at the end of the tenancy the Appellant Landlord`s Agents carried out an
inspection of the dwelling which took place on the 16 July 2015. He confirmed that this
inspection was not carried out jointly with the Respondent Tenant in attendance at the
hearing. He referenced the Agents report as contained on the RTB file at page 38 of 71.
He said that he contacted the Respondent Tenants on the 17 July 2015 and spoke to
them about the substantial damage caused to the dwelling during the tenancy, he said he
sought their forwarding address.
The Appellant Landlord`s Representative said that the carpets in the dwelling were
damaged and marked, he said that the carpets had been put into the dwelling in 2012
and he referenced the estimate on the RTB file for the cleaning of the carpets in the
dwelling. He referenced a photograph he submitted at Hearing which he said showed the
carpet of the stairs at the end of the tenancy. He also referenced the photographs
submitted which he said showed damage to the walls which had plaster taken off in parts
and had marks like liquid splashes in places; marks to the couch; waste left outside the
back of the dwelling to include the kitchen table and chairs which were damaged; smoke
alarms missing . In response to questions he confirmed that as the dwelling had been
repainted prior to the commencement of the tenancy that only a partial repainting was
required at the end of the tenancy.
The Appellant Landlord`s Representative said that due to the damage caused to the
dwelling in excess of normal wear and tear arising during the tenancy the re-letting of the
dwelling was delayed by two weeks. He said that the dwelling was re-let on the 5 August
2015.
The Appellant Landlord`s Representative asserted that rent arrears of €182.38 arose at
the end of the tenancy in the dwelling, he said that this arose because of the pro rata
adjustment of rent for the first month of the tenancy from the commencement of the
tenancy to end of the month and for the last month of the tenancy in respect of the days
to the end of the tenancy on the 16 July 2016.
RESPONDENT TENANTS CASE:
The First Named Respondent Tenant confirmed that she represented both Respondent
Tenants and said that when she viewed the dwelling in June 2014 a family with two small
children were living in the dwelling. She said that she was assured by the Appellant
Landlord`s Agents that everything would be cleaned in the dwelling prior to the tenancy
commencing. She said when she got the keys to the dwelling on the 3 July 2014 that she
had paid in advance what she was told to pay. She said she was not told of any pro rata
payment for the month of July 2014.
She said that after she arrived at the dwelling on the 3 July 2014 she sent the email of the
3 July 2014 to the Appellant Landlord`s Agents and she attached to her email the
photographs at pages 18/19 of 71 on the RTB file. She said that there was no door on
one side of the shower; that the dwelling was not clean; that the carpets and furniture had
black marks and were dirty. She said that there was a smell of urine in the dwelling; that
the mattresses and the fridge in the dwelling were in a terrible condition; that the carpet
on the landing and stairs was damaged; that the oven was covered in tin foil which had
been placed over grease.
The First Named Respondent Tenant said that she had to arrange for the removal of
waste from the dwelling, that she left in the rear of the dwelling a lot of disgarded items
which were there at the commencement of the tenancy after she removed what was
clearly waste.
She said that the Respondent Tenants did not receive chairs from the Appellant Landlord
as suggested in the emails between the Appellant Landlord and his Agents. She said
that 3 mattresses and a 3 piece suite were received at the end of July 2014 but that no
chairs were received.
She said she paid all bills presented during the tenancy in the dwelling. She queried why
no receipts for furniture put into the dwelling as alleged by the Appellant Landlord were
furnished by the Appellant Landlord.
She said that the photographs submitted by the Appellant Landlord concerning what he
alleges is the condition of the dwelling at the end of the tenancy reflect the condition of
the dwelling at the commencement of the tenancy . She said that the dwelling was left in
better condition at the end of the tenancy than it was in at its commencement . She said
that she got no response to her complaints of the 3 July 2014 to the Appellant Landlord`s
Agents.
She said that she lived in the dwelling during the tenancy with her daughter who was 12
years old at the time, her boyfriend who occasionally stayed over and the other
Respondent Tenant. She said the Appellant Landlord`s Agent knew her daughter was
living in the dwelling with the Respondent Tenants.
The First Named Respondent Tenant said that if the dwelling was painted prior to the
commencement of the tenancy on the 3 July 2014 then it was very poor painting and that
the couch was marked before the tenancy commenced. She said that the Respondent
Tenants never denied the Appellant Landlord access, that they facilitated the collection of
mail and were friendly as well as co-operative in their dealings with the Respondent
Landlord.
She said that when the tenancy ended on the 16 July 2015 she did not speak with the
Respondent Landlord or his Agents. She said that she contacted the Agents two weeks
after the ending of the tenancy to enquire about the return of the deposit. She said also
that the first direct contact she had with the Respondent Landlord was when she spoke to
him in August 2015. She said that she did not remember any conversation with the
Respondent Landlord`s Agent on the 17 July 2015.
She accepted that the Respondent Tenants did put a mirror on a wall in the dwelling
which was held in place by adhesive stickers, she said that this wall was damaged
already and the mirror covered the damage.
She said that the boiler in the dwelling dripped and was making noises on a few
occasions during the tenancy, she said that the Respondent Tenants on occasion were
afraid to switch on the boiler on account of this noise.
She re-iterated that no-one conducted an inspection of the dwelling with her at the end of
the tenancy and that the dwelling was left in better condition at the end of the tenancy
than it was at the beginning of the tenancy. She said that she did not do a deep clean of
the dwelling at the end of the tenancy, that this should have been done before the
tenancy commenced and would require specialist equipment.
6. Matters Agreed Between the Parties
a. The tenancy in the dwelling commenced on the 3 July 2014.
b. The tenancy in the dwelling ended on the 16 July 2015
c. The rent for the dwelling during the tenancy was €1200 per month.
d. A security deposit of €1200 was paid by the Respondent Tenants to the Appellant
Landlord at the commencement of the tenancy in the dwelling and the Appellant Landlord
retains the security deposit in the sum of €1200.
7. Findings and Reasons:
Having considered all the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal`s findings and reasons therefore are set out
hereunder.
1. FINDING: The Appellant Landlord`s claim for rent arrears arising during the
tenancy in the dwelling is not upheld.
REASON: No proper record of rent charged and paid has been furnished in evidence
before the Tribunal. The onus is on the Appellant Landlord to show what payments were
made during the tenancy in respect of rent arising and to prove any arrears due. The
Tribunal is satisfied from the evidence furnished that the Respondent Tenants paid what
they were asked to pay during the tenancy. For the avoidance of doubt the Tribunal is
further satisfied that the Respondent Tenants were not in rent arrears.
2. FINDING: The Respondent Tenants are liable for the sum of €100 in respect of
damages in excess of normal wear and tear caused to the dwelling during the tenancy
and for breach of the Respondent Tenants` obligations pursuant to Section 16(f) of the
Residential Tenancies Act, 2004.
REASON: The Tribunal finds that the evidence furnished by the Appellant Landlord, to
include the photographs furnished, as to the condition of the dwelling at the
commencement of the tenancy is not satisfactory. It is clear from the evidence furnished
by both Parties that furniture was replaced in the dwelling early in the tenancy; there is
some conflict of evidence as to what furniture was replaced; however the Tribunal is
satisfied from the evidence furnished that three mattresses and a three piece suite were
furnished in July 2014 by the Appellant Landlord. An inspection report at the end of the
previous tenancy, had it been available to the Tribunal, would have assisted the Tribunal
in assessing the condition of the dwelling at the commencement of this tenancy.
It is clear from the evidence furnished that the Appellant Landlord or his Agent visited the
dwelling on at least four occasions during the tenancy in the dwelling and that no issues
were raised with the Respondent Tenants and/or notices served by the Appellant
Landlord following these visits.
The onus of proof of damage in excess of normal wear and tear arising during the
tenancy in the dwelling is on the Appellant Landlord. The Respondent Tenants
acknowledge that they did put a mirror on a wall in the dwelling which was held in place
by adhesive stickers. The Tribunal is of the view that the adhesive to hold a mirror in
place is likely to have caused some damage to the wall which the Tribunal finds is in
excess of normal wear and tear arising during the tenancy and awards the sum of €100 to
the Appellant Landlord in respect of such damage.
3. FINDING: The Appellant Landlord shall pay the total sum of €1100 to the
Respondent Tenants within 14 days of the date of issue of the Order, being the balance
of the unjustifiably retained security deposit of €1200 having deducted €100 for damage
to the dwelling in excess of normal wear and tear in respect of the tenancy in the
dwelling.
REASON: The parties agree that a security deposit of €1200 was paid by the
Respondent Tenants to the Appellant Landlord at the commencement of the tenancy in
the dwelling. Having regard to Finding 7.2. above the Tribunal finds that €100 of this
deposit was justifiably retained by the Appellant Landlord.
8. Determination:
Tribunal Reference TR1215-001506
In the matter of Adrian Dumitru (Landlord) and Anna Soroka, Ieva Dimskyte
(Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The Appellant Landlord shall pay the total sum of €1,100.00 to the Respondent
Tenants within 14 days of the date of issue of the Order being the balance of the
unjustifiably retained security deposit of €1200 having deducted €100 in damage to the
dwelling in excess of normal wear and tear in respect of the tenancy in the dwelling at
33 Adamstown Avenue, Lucan, County Dublin.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
14 June 2016.
Signed:
Louise Moloney Chairperson
For and on behalf of the Tribunal.

Harrison v Kerry Propeerty Management

 

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001710 / Case Ref No: 0116-23545
Applicant Tenant: Breffni Harrison, Douglas Harrison
Respondent Landlord: Kerry Property Management , James Sheehan
Address of Rented Dwelling: 29 Langford Street, Killorglin , Kerry,
Tribunal: Peter Shanley (Chairperson)
Brian Murray, Rosemary Healy Rae
Venue: Committee Room 1, Cork City Council, City Hall,
Anglesea Street, Cork
Date & time of Hearing: 19 July 2016 at 11:00
Attendees: Garrath Sheehan (Respondent Landlord’s
representative)
Una Glazier-Farmer B.L. (counsel for the
Respondent Landlord)
Douglas Harrison (Applicant Tenant)
Breffni Harrison (Applicant Tenant)
In Attendance: DTI LLC
1. Background:
On 15 January 2016 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 76 of the Act. The matter was referred to a Mediation
which took place on 2 March 2016. The dispute was not resolved by mediation.
Subsequently an application for referral to Tribunal was received from the Tenants on 6
April 2016. The grounds of the referral were (i) breach of landlord obligations, (ii) deposit
retention. The application was approved by the Board on 8 April 2016.
The RTB constituted a Tenancy Tribunal and appointed Peter Shanley, Brian Murray and
Rosemary Healy-Rae as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Peter Shanley to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 19 July 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:
None.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the 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
having regard to the particular nature of the dispute, the Landlord would be invited to
present his case first; that there would be an opportunity for cross-examination by the
Tenants; that the Tenants would then be invited to present their case, and that there
would be an opportunity for cross-examination by the Landlord. 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 representative of DTI LLC who was 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 or imprisonment or both.
The Chairperson also reminded the Parties that following 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:
The Landlord’s Case:
1. Deterioration in the condition of the dwelling beyond normal wear and tear.
Counsel for the Landlord submitted that the Landlord was entitled to retain the €400.00
deposit paid by the Tenancies at the commencement of the tenancy due to the fact that
the Tenants had caused the condition of the dwelling to deteriorate beyond normal wear
and tear having regard to the time that had elapsed from the commencement of the
tenancy, the extent of the occupation of the dwelling and any other relevant matters.
Counsel for the Landlord submitted that this €400 represented only a fraction of the total
cost the Landlord has had to incur to bring the dwelling up to a habitable state again. The
Landlord’s representative gave evidence that this deterioration caused it to incur the
following expenditure: (i) Cleaning Bill of €799.40; (ii) Cost of oil required to recommission
the heating system of €150.02; (iii) Cost of work carried out to the garden of
€100.00; (iv) Replacement of vinyl floor covering in the bathroom at a cost of €65.00; (v)
Painting of the dwelling at a cost of €160.00; (vi) €90 in respect of the service of the
boiler; (vii) Replacement of plasterboard on the ceiling of the bathroom at a cost of
€200.00; (viii) the replacement of a mattress and (ix) the replacement of an oven. The
Landlord’s representative gave evidence in respect of each these heads of claim
sequentially as follows:
(i) Cleaning Bill of €799.40
The Landlord’s representative gave evidence that the house was left in an exceptionally
dirty state at the end of the tenancy. The Landlord’s representative stated that while it
would be normal to engage cleaners to clean a dwelling between tenancies, the normal
cost of this, in his experience, was €100 – €200. The Landlord’s representative gave
evidence that he paid €799.40 for a “deep restorative clean” which he said was over and
above the cost of cleaning the Landlord would normally incur between tenancies. He
acknowledged that the tenancy in this case lasted for four years, which he said was
longer than the average tenancies the Landlord would usually have in place in its other
properties. The Landlord’s representative adduced photographic evidence which he said
showed the level of dirt of the dwelling at the end of the tenancy.
(ii) Cost of oil of €150.02 required to re-commission the heating system
The Landlord’s representative stated that there was no oil in the tank for the central
heating and that he felt that the central heating had not in fact been used for quite some
time. The Landlord’s representative gave evidence that the boiler had seized up and that
the radiators were air-locked. In an effort to heat the house up and get the boiler
functioning properly again, the Landlord’s representative stated that he purchased oil for
€150.02 and he provided an invoice for this cost.
(iii) Cost of work carried out to the garden of €100.00
The Landlord’s representative gave evidence that the garden had become overgrown and
that he paid a gentleman named David €100.00 to cut back the grass, weeds and shrubs
with a hedge trimmer.
(iv) Replacement of vinyl floor covering in the bathroom at a cost of €65.00
The Landlord’s representative gave evidence that the vinyl flooring in the bathroom had to
be replaced due to dirt. He stated that this dirt amounted to more than normal wear and
tear. The Landlord’s representative stated that he was not sure when the vinyl had been
last replaced. He accepted that it pre-existed the commencement of the tenancy, but that
he would expect it to have a life of 10 to 20 years. The Landlord’s representative provided
an invoice in respect of this cost of €65.00.
(v) Painting of the dwelling at a cost of €160.00
The Landlord’s representative gave evidence that the re-painting of the dwelling cost
€160.00 and that whereas the Landlord would normally re-paint a dwelling between
tenancies, the removal of mould is over and above what would be expected to be dealt
with between tenancies.
(vi) €90 in respect of the service of the boiler
The Landlord’s representative stated that the service of the boiler cost €90.00 and he
produced an invoice in respect of this expense. He stated that it was the Landlord’s
practice to service the boilers of the Landlord’s properties every September.
(vii) Replacement of plasterboard on the ceiling of the bathroom at a cost of €200.00
The Landlord’s representative gave evidence that the ceiling of the downstairs bathroom
had to be replaced at a cost of €200.00 and he produced an invoice in respect of this
expense. He produced photos of the damage caused to the ceiling and he stated that in
his view the damage was caused by condensation on the ceiling due to the tenants not
heating or ventilating the room properly. The Landlord’s representative stated that the
plasterboard was damaged by condensation and had to be replaced.
(viii) Replacement of a mattress
The Landlord’s representative also gave evidence that he had to throw out the mattress
that had been provided at the start of the tenancy. The Landlord had a spare mattress so
it did not have to incur the expense of purchasing a new one. The Landlord’s
representative stated that this damage to the mattress went beyond normal wear and
tear.
(ix) The replacement of an oven
The Landlord’s representative gave evidence that the Tenants’ failure to clean and/or
adequately clean the oven resulted in the necessity for a new oven to be provided.
2. Rent Review
Regarding the Tenants’ claim that the Rent Review conducted in April / May 2015 was
unlawful on account of it not having been notified in writing to the Tenants, counsel for the
Landlord made a preliminary objection to the Tenants’ entitlement to challenge the
lawfulness of the rent review. Counsel for the Landlord submitted that section 22 of the
Residential Tenancies Act 2004 (which was in operation at the relevant time) provided for
a period of 28 days within which to refer a dispute to the RTB under Part 6 of the Act.
Regarding the substance of that dispute – the Tenants’ complaint that the notice of rent
review was not in writing – the Landlord’s representative gave evidence that there was a
sequence of email correspondence concerning the setting of an increased rent. The
Landlord’s representative pointed out that an email of 24 April 2015 was sent to the
Tenants by the Landlord inviting the Tenants to contact the Landlord’s representative to
discuss the rent. This email was followed by an email sent by the Landlord’s
representative to the first named Tenant on 7 May 2015 stating that he had a look at the
first named Tenant’s own proposal regarding the new rent and requesting the Tenant to
phone him later. This proposal was that the tenant would pay €110 per week. This
proposal was less than the amount originally sought by the Landlord. The Landlord’s
representative further noted that by email dated 19 May 2015, he set out, in writing, the
amount of the new rent and the date from which it is due to be paid. The Landlord’s
representative stated that the Tenants never raised any objection to communication by
email and that they were not prejudiced in any way by it.
By way of general submission, the Landlord’s representative stated that he has attempted
at all times to be as helpful towards the Tenants as he could be. He acknowledged that a
HSE inspection had been carried out in December 2012 and stated that the Landlord had
taken all necessary actions on foot of the HSE report. He stated that he always attended
to maintenance issues promptly and incurred costs associated with this which were not
necessarily his responsibility such as replacing sofas. He stated that the monthly rent of
€475.00 was significantly less than the market rent for a 3-bedroom house in Killorglin
and this reflected the nature of the dwelling. He stated that the Landlord recently let an
unfurnished property in Killorglin for €700 per month. The Landlord’s representative
stated that the Landlord is a company owned by himself and his father. It is, as his
counsel described it, a small, family-run business, which has a number of properties in
the Killorglin area. The Landlord’s representative stated that the Landlord has never
before had to retain the full deposit paid by a tenant although some deductions will often
have to be made.
The Landlord’s representative stated that this particular dwelling had been refurbished in
1995 and had been let since then to various tenants. The Landlord’s representative
stated that the Landlord has incurred expenses of €1,700 since the Tenants vacated the
dwelling and in addition it took 5-6 weeks to put the dwelling back into the condition
required to rent it out again. The Landlord’s representative stated that he would normally
expect no more than 1 or 2 weeks between tenancies. The Landlord’s representative
acknowledged that there was never any difficulty with the Tenants in terms of the
payment of rent.
Closing Submissions
Counsel for the Landlord handed in written submissions in relation to the all of the issues
raised. She also argued that the Tenant’s allegedly false assertions about a second
inspection of the dwelling called into question the credibility of the evidence given by the
Tenants.
Tenants’ Case:
1. Deterioration in the condition of the dwelling beyond normal wear and tear.
(i) Cleaning Bill of €799.40
The Tenants gave evidence that the house was not dirty when they left it. They pointed to
the photos that they took on the day they left and stated that these show the house to
have been clean. Furthermore, the Tenants note the photograph, provided by the
Landlord, of the refuse bags which they said showed the extent to which they cleaned the
dwelling prior to vacating it.
(ii) Cost of oil required to re-commission the heating system
The Tenants gave evidence that the boiler was checked 6 months before they left the
dwelling and that there was no problem with it. When questioned, the Tenants accepted
that this boiler inspection may have in fact been in September 2014, when the Landlord
carried out testing on the boilers for all of its properties. The Tenants gave evidence that
they used both the central heating and the fire in the sitting room downstairs to heat the
house. They stated that they used the immersion heater to heat the water. The Tenants
stated that they purchased oil every 3 or 4 months at a cost of approximately €200 to
€300 each time. However, they could not recall the name of the supplier from whom they
purchased the oil. In addition, they said they purchased coal once a month. The Tenants
stated that the radiators worked fine and were not air locked.
(iii) Cost of work carried out to the garden of €100.00
The Tenants stated that the Landlord at all times took responsibility for the maintenance
of the garden although they noted that they did not have a written lease dealing with such
responsibilities. As far as they could tell, the Landlord sent somebody to maintain the
garden every 3 or 4 months.
(iv) Replacement of vinyl floor covering in the bathroom at a cost of €65.00
The Tenants stated that the vinyl in the downstairs bathroom was not dirty or damaged
when they left the dwelling. They stated that it was not new at the commencement of their
tenancy and that it had always been raised and poorly fitted around the sanitary units.
(v) Painting of the dwelling at a cost of €160.00
The Tenants submitted that there was no need for the dwelling to be re-painted at the
date they vacated the dwelling. The Tenants noted that there was no photographic
evidence showing a need for re-painting of the dwelling.
(vi) €90 in respect of the service of the boiler
The Tenants gave evidence that the boiler was checked 6 months before they left and
that there was no problem with it. When questioned, the Tenants accepted that this boiler
inspection may have in fact been in September 2014, when the Landlord carried out
testing on the boilers for all of its properties. They stated that there was no problem with
the boiler when they left the dwelling.
(vii) Replacement of plasterboard on the ceiling of the bathroom at a cost of €200.00
The Tenants stated that they ventilated and heated the downstairs bathroom as best they
could. They stated that there was an electric fan heater on the wall which they used to
heat the room on occasion. They said there was no vent in the window but that they did
open the window in the bathroom. They stated that they also used the bathroom to dry
clothes on a clothes horse. The Tenants stated that the paintwork on the tiles started to
bubble and eventually come away soon after they began using that bathroom instead of
the upstairs bathroom, due to plumbing issues that were affecting the upstairs bathroom.
This was approximately 18 months before they vacated the dwelling. They stated that
they noticed the paint coming away from the ceiling also but that the plaster was not
coming down. They said that the issue with the paintwork became progressively worse
over time. They pointed to the photographs which showed that there was no problem with
the plain wall which was not tiled. They submitted that the damage to the ceiling may
have been caused by the Landlord’s workmen using the flat roof over the bathroom to
access the garden at the rear of the dwelling. This assertion was vehemently denied by
the Landlord’s representative.
(viii) Replacement of a mattress
The Tenants stated that the mattress provided to them by the Landlord was second hand
when they moved into the dwelling and that as far as they were concerned it was not
damaged at all when they vacated the dwelling.
(ix) The replacement of an oven
The Tenants gave evidence that as far as they were concerned, they cleaned the oven
adequately. They said they did not take any photos of the oven because they didn’t think
there was any need to do so.
The Tenants asserted that a second inspection of the dwelling had been carried out by
Kerry County Council in 2014 or 2015 and that the inspector’s findings had been marked
on the original 2012 Report. This was vehemently denied by the Landlord’s
representative who said he had never received any notification of a second inspection
and that he would have received written notification prior to any such inspection.
2. Rent Review
The Tenants gave evidence that they contacted Threshold and were informed that the
notification of a rent increase by email does not constitute notice “in writing” as required
by the Residential Tenancies Act 2004. Accordingly, the Tenants claim that the rent
review was unlawful. The Tenants do acknowledge however that the rent increase was
reached by way of mutual agreement with the Landlord following notification, by email
from the Landlord, of a new rent following a rent review and indeed the figure arrived at
was proposed by the first named Tenant and they paid the rent without default every
month since it was reviewed. They acknowledge that they never objected to
communication by email and they were not prejudiced by receiving the notice by email
rather than on paper.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The Tenancy commenced on 15 November 2011.
2. The Tenant is no longer in occupation of the dwelling having moved out on 1 October
2015.
3. The deposit paid at the beginning of the tenancy was €400.
4. The monthly rent was €475 having been increased from €400 from June 2015.
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
therefor, are set out hereunder.
7.1 Finding: The Tribunal finds that the replacement of plasterboard on the ceiling of the
bathroom at a cost of €200.00 was a cost incurred by the Landlord in taking such steps
as are reasonable for the purposes of restoring the dwelling to the condition mentioned in
section 16(f) of the Residential Tenancies Acts 2004 – 2015 (“the Act”).
Reasons:
1. Section 12(d) of the Act provides that a Landlord must subject to subsection (4), return
or repay promptly any deposit paid by the tenant to the landlord on entering into the
agreement for the tenancy.
2. Subsection (4) provides, inter alia, that no amount of the deposit concerned shall be
required to be returned or repaid if, at the date of the request for return or repayment,
there is a default in compliance with section 16(f) and the amount of the costs that would
be incurred by the landlord, were he or she to take them, in taking such steps as are
reasonable for the purposes of restoring the dwelling to the condition mentioned in
section 16(f) is equal to or greater than the amount of the deposit.
3. The condition mentioned in section 16(f) is the condition the dwelling was in at the
commencement of the tenancy, but that section also provides that there shall be
disregarded, in determining whether this obligation has been complied with at a particular
time, any deterioration in that condition owing to normal wear and tear, that is to say wear
and tear that is normal having regard to:
(i) the time that has elapsed from the commencement of the tenancy,
(ii) the extent of occupation of the dwelling the landlord must have reasonably foreseen
would occur since that commencement, and
(iii) any other relevant matters.
4. The Landlord has asserted an entitlement to retain the deposit on the grounds that it
was caused to incur costs in taking steps which were reasonable for the purposes of
restoring the dwelling to the condition it was in at the commencement of the tenancy, but
disregarding normal wear and tear.
5. The burden of proof is on the Landlord to satisfy the Tribunal that the relevant items of
expenditure were necessarily incurred to restore the dwelling to the condition it was in at
the commencement of the tenancy, but disregarding normal wear and tear.
6. The Tribunal is satisfied, on the balance of probabilities, that the Tenants were aware
of an issue concerning the deterioration of the tiles and ceiling of the downstairs
bathroom for a period of approximately 18 months prior to the end of their tenancy.
7. The Tribunal notes that Tenants have an obligation under section 16(d) of the Act to
notify the landlord or his or her authorised agent of any defect that arises in the dwelling
that requires to be repaired so as to enable the landlord comply with his or her
obligations, in relation to the dwelling or the tenancy. The Tribunal finds that the Tenants
failed to notify the Landlord of the defect that arose in the downstairs bathroom and this
had the inevitable consequence of the ceiling ultimately needing to be replaced.
8. The Tribunal is satisfied that the replacement of plasterboard on the ceiling of the
bathroom at a cost of €200.00 was a cost incurred by the Landlord in taking such steps
as are reasonable for the purposes of restoring the dwelling to the condition mentioned in
section 16(f) of the Act.
9. Furthermore, having regard to the failure of the Tenants to notify the Landlord of the
defect, the Tribunal is satisfied that this caused a deterioration to the condition of the
dwelling beyond normal wear and tear.
10. The Tribunal is therefore satisfied that the Landlord is entitled to deduct €200 from the
€400 deposit paid by the Tenants at the commencement of the tenancy.
7.2 Finding: The Tribunal finds that the following items of expenditure were not costs
incurred by the Landlord in taking such steps as are reasonable for the purposes of
restoring the dwelling to the condition mentioned in section 16(f) of the Residential
Tenancies Acts 2004 – 2015 (“the Act”):
(a) Cleaning bill of €799.40.
(b) The €150.02 cost of purchasing oil to re-commission the heating system and the
boiler.
(c) The cost of work carried out to the garden of €100.00.
(d) Replacement of vinyl in the bathroom at a cost of €65.00.
(e) Painting of the dwelling at a cost of €160.00.
(f) €90 in respect of the service of the boiler.
(g) The replacement of a mattress.
(h) The replacement of an oven.
Reasons:
1. Section 12(d) of the Act provides that a Landlord must, subject to subsection (4), return
or repay promptly any deposit paid by the tenant to the landlord on entering into the
agreement for the tenancy.
2. Subsection (4) provides, inter alia, that no amount of the deposit concerned shall be
required to be returned or repaid if, at the date of the request for return or repayment,
there is a default in compliance with section 16(f) and the amount of the costs that would
be incurred by the landlord, were he or she to take them, in taking such steps as are
reasonable for the purposes of restoring the dwelling to the condition mentioned in
section 16(f) is equal to or greater than the amount of the deposit.
3. The condition mentioned in section 16(f) is the condition the dwelling was in at the
commencement of the tenancy, but that section also provides that there shall be
disregarded, in determining whether this obligation has been complied with at a particular
time, any deterioration in that condition owing to normal wear and tear, that is to say wear
and tear that is normal having regard to:
(i) the time that has elapsed from the commencement of the tenancy,
(ii) the extent of occupation of the dwelling the landlord must have reasonably foreseen
would occur since that commencement, and
(iii) any other relevant matters.
4. The Landlord has asserted an entitlement to retain the deposit on the grounds that it
was caused to incur costs in taking steps which were reasonable for the purposes of
restoring the dwelling to the condition it was in at the commencement of the tenancy, but
disregarding normal wear and tear.
5. The burden of proof is on the Landlord to satisfy the Tribunal that the above items of
expenditure were necessarily incurred to restore the dwelling to the condition it was in at
the commencement of the tenancy, but disregarding normal wear and tear.
6. The Tribunal is not satisfied, on the balance of probabilities, that the cleaning work
carried out by the Landlord represented a reasonable step to take for the purposes of
restoring the dwelling to the condition it was in at the commencement of the tenancy,
disregarding normal wear and tear. In particular, the Tribunal is not satisfied that the
necessity to clean the dwelling was any greater than one would expect at the end of a 4-
year tenancy and as such the Tribunal is satisfied that the cleaning required related to
normal wear and tear having regard to the length of the tenancy, which the Landlord’s
representative accepted was a longer tenancy than that which the Landlord would
normally have. The Tribunal considered the photographic evidence to be inconclusive as
to the extent of cleaning that was required to restore the dwelling to the condition it was in
at the commencement of the tenancy.
7. The Tribunal is not satisfied, on the balance of probabilities, that the cost of purchasing
oil to re-commission the heating system and the boiler was a cost necessarily incurred to
restore the dwelling to the condition it was in at the commencement of the tenancy. In this
regard the Tribunal also finds that there is no implied obligation on a tenant to use the
central heating system or to ensure that there was, at all times, sufficient oil to run the
central heating system.
8. The Tribunal is not satisfied, on the balance of probabilities, that the cost of work
carried out to the garden of €100.00 was a cost necessarily incurred to restore the
dwelling to the condition it was in at the commencement of the tenancy, disregarding
normal wear and tear. In particular, the Tribunal accepts the Tenants’ evidence that the
Landlord took responsibility for the maintenance of the garden.
9. The Tribunal is not satisfied, on the balance of probabilities, that the cost of
replacement of vinyl in the bathroom at a cost of €65.00 was a cost necessarily incurred
to restore the dwelling to the condition it was in at the commencement of the tenancy,
disregarding normal wear and tear. The Tribunal considered the photographic evidence to
be inconclusive as to the extent of the dirt on the vinyl flooring. In addition, the Landlord’s
evidence was that the vinyl had been fitted prior to the commencement of the tenancy
and had been used during previous tenancies, although he was unable to state precisely
when or how long ago it had been fitted. The Tribunal concludes, on the balance of
probabilities, that the replacement of the vinyl flooring was necessitated by reason of
normal wear and tear associated with flooring in a bathroom.
10. The Tribunal is not satisfied, on the balance of probabilities, that the painting of the
dwelling at a cost of €160.00 was a cost necessarily incurred to restore the dwelling to the
condition it was in at the commencement of the tenancy, disregarding normal wear and
tear. The Tribunal notes the Landlord’s representative’s evidence to the effect that it
would be normal practice for him to re-paint a dwelling between tenancies. Although the
invoice made reference to the presence of “moulds”, the Tenants deny that there was any
mould and the Tribunal is not satisfied that there is sufficient evidence, such as
photographic evidence, supporting the proposition that there was mould in the dwelling.
Furthermore, even if the presence of mould was conclusively proven, the cause of such
mould has not been proven and the Tribunal could not make a finding against the
Tenants in such circumstances.
11. The Tribunal is not satisfied, on the balance of probabilities, that the €90 in respect of
the service of the boiler was a cost necessarily incurred to restore the dwelling to the
condition it was in at the commencement of the tenancy, disregarding normal wear and
tear. The Landlord’s representative gave evidence of the fact that he arranges for such
servicing of the boilers in the Landlord’s various properties to be carried out every
September. The Tribunal is satisfied that any works that are required to be carried out on
foot of this routine servicing are due to normal wear and tear.
12. The Tribunal is not satisfied, on the balance of probabilities, that the replacement of a
mattress was a cost necessarily incurred to restore the dwelling to the condition it was in
at the commencement of the tenancy, disregarding normal wear and tear. No evidence,
such as photographic evidence, was adduced in respect of the damage allegedly done to
the mattress and the Tribunal accepts the Tenants’ evidence that the mattress was not
damaged before they vacated the dwelling.
13. The Tribunal is not satisfied, on the balance of probabilities, that the replacement of
the oven was a cost necessarily incurred to restore the dwelling to the condition it was in
at the commencement of the tenancy, disregarding normal wear and tear. No evidence,
such as photographic evidence, was adduced in respect of the damage allegedly done to
the oven by reason of the Tenants’ failure to clean the oven.
7.3 Finding: The Tribunal finds that, on the balance of probabilities, there was no second
inspection of the dwelling carried out by Kerry County Council as asserted by the
Tenants.
Reasons
The Tribunal is not satisfied, on the balance of probabilities, that a second inspection of
the dwelling took place in 2014 or 2015. In this respect the Tribunal accepts the evidence
of the Landlord’s representative that the Landlord would have received written notification
prior to any such inspection and would have received a formal written report following any
such inspection.
7.4 Finding: The Tribunal finds that the Tenant is permitted to challenge the lawfulness of
the rent review insofar as the Tenants allege that the notice required to be served under
section 22(2) was not in writing as required by section 22(2).
Reasons:
1. Section 22 provides as follows:
(1) The setting of a rent (the “new rent”) pursuant to a review of the rent under a tenancy
of a dwelling and which is otherwise lawful under this Part shall not have effect unless
and until the condition specified in subsection (2) is satisfied.
(2) That condition is that, at least 28 days before the date from which the new rent is to
have effect, a notice in writing is served by the landlord on the tenant stating the amount
of the new rent and the date from which it is to have effect.
(3)Where that condition is satisfied, a dispute in relation to a rent falling within subsection
(1) must be referred to the Board under Part 6 before—
(a) the date stated in the notice under subsection (2) as the date from which that rent is to
have effect, or
(b) the expiry of 28 days from the receipt by the tenant of that notice, whichever is the
later.
2. Accordingly, it is only where the condition at subsection (2) is satisfied that the time
limit in subsection (3) regarding the referral of a dispute under Part 6 applies. In
circumstances where the issue in dispute is whether the condition at subsection (2) has
been satisfied, i.e. whether the notice was in writing, the time limit imposed by subsection
(3) cannot be found to have been triggered.
3. A failure to comply with the provisions of subsection (2) will have the result of the rent
review, which was otherwise lawful, not having effect. This is expressed by the legislation
in section 22(1) and accordingly it does not depend on a valid challenge, within any
prescribed time limit, by the Tenant.
4. The Tribunal is therefore satisfied that the Tenant is entitled to make the case that the
notice of rent review was not in compliance with the requirements of section 22(2) in that
it was not in writing, as required by section 22(2) of the Act.
7.5 Finding: The Tribunal finds that the notice of rent review sent by email to the Tenants
on 19 May 2015 was in writing as required by section 22(2) of the Act.
Reasons:
1. The Tenants’ application to the RTB for dispute resolution services stated that they did
not receive written notice when the rent was increased and that only a telephone call was
received. Furthermore, the Tenants’ Grounds of Appeal state that the rent was raised
without any written notice.
2. The Tenants accepted during the hearing that in fact they had received email
notification of the proposed increase in rent and accordingly, the Tribunal is satisfied that
notice was given to the Tenant by email, rather than merely by telephone call. Evidence
was adduced by the Landlord of an exchange of emails between the first named Tenant
and the Landlord regarding the review of the rent.
3. The Tribunal is satisfied that the email correspondence between the parties, and in
particular the email of the email dated 19 May 2015, where the Landlord’s representative
set out, in writing, the amount of the new rent and the date from which it is due to be paid,
amounts to notice in writing of the rent review.
4. Section 12 of the Electronic Commerce Act, 2000, provides as follows:
12.—(1) If by law or otherwise a person or public body is required (whether the
requirement is in the form of an obligation or consequences flow from the information not
being in writing) or permitted to give information in writing (whether or not in a form
prescribed by law), then, subject to subsection (2), the person or public body may give
the information in electronic form, whether as an electronic communication or otherwise.
(2) Information may be given as provided in subsection (1) only—
[…]
(c) where the information is required or permitted to be given to a person who is neither a
public body nor acting on behalf of a public body—if the person to whom the information
is required or permitted to be given consents to the information being given in that form.
5. The Tribunal is satisfied, having regard to the extensive email correspondence that
passed between the parties and the evidence of the parties that the Tenants never
objected to the Landlord communicating with them by email, that the Tenants consented
to notice being given by electronic means, within the meaning of section 12 of the
Electronic Commerce Act, 2000.
6. The Tribunal also notes that the Tenants paid the increased rent willingly and never
raised any objection to it.
8. Determination:
Tribunal Reference TR0416-001710
In the matter of Breffni Harrison, Douglas Harrison (Tenant) and Kerry Property
Management , James Sheehan (Landlord) the Tribunal in accordance with section
108(1) of the Residential Tenancies Act 2004, determines that:
The Respondent Landlord shall pay the total sum of €200 to the Applicant Tenants,
within 21 days of the date of issue of the Order, being the balance of the unjustifiably
retained security deposit of €400 having deducted €200 in damage to the dwelling in
excess of ordinary wear and tear, in respect of the tenancy of the dwelling at 29
Langford Street, Killorglin, County Kerry.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
25 July 2016.
Signed:
Peter Shanley Chairperson
For and on behalf of the Tribunal.

John Tiernan Chairperson
For and on behalf of the Tribunal.

 

 

Khalil v Flannagan

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001442 / Case Ref No: 0715-19499
Appellant Tenant: Shakeel Khalil
Respondent Landlord: Maureen Flannagan
Address of Rented Dwelling: 2 Ardee Court, Cork Street , Dublin 8, D08DP73
Tribunal: Anne Colley (Chairperson)
Finian Matthews, Rosemary Healy Rae
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 12 January 2016 at 10:30
Attendees: Maureen Flanagan (Respondent Landlord)
Shakeel Khalil (Appellant Tenant)
Daila Kirsone (Wife of Appellant Tenant)
James O’Donohoe (Respondent Landlord Legal
Representative)
Seamus McKeown (Respondent Landlord
Agent/Representative)
In Attendance: Representative of Wordwave Stenographers
Ariek Sofaryan – Official interpreter (Russian)
1. Background:
On 10 July 2015 the Tenant made an application to the Private Residential Tenancies
Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 05 October 2015. The Adjudicator determined that:
1. The Applicant Tenant hold the tenancy of the dwelling at Apartment 2, Ardee Court,
Cork Street, Dublin 8 under a further part 4 tenancy for the purposes of the Residential
Tenancies Act, 2004.
2. The Notice of Termination served on 13 July 2015 by the Respondent Landlord on
the Applicant Tenant in respect of the tenancy of the dwelling at Apartment 2, Ardee
Court, Cork Street, Dublin 8, is invalid.
3. The proper market rent on the tenancy of the dwelling at Apartment 2, Ardee Court,
Cork Street, Dublin 8 is in the sum of €1,100 per calendar month and that rent shall have
effect as if the rent was increased on the 01 September 2015.
Subsequently the following appeal was received from the tenant on 09 November 2015.
The grounds of the appeal were Standard and maintenance of dwelling The appeal was
approved by the board 20 November 2015.
The PRTB constituted a Tenancy Tribunal and appointed Anne Colley, Finian Matthews,
Rosemary Healy Rae as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Anne Colley to be the chairperson of the Tribunal (“the Chairperson”).
On 2 December2015 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 12 December 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:
Landlord’s solicitor submitted some photographs taken by the Landlord in December
2015, with consent of the Tenant.
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 that would be followed; that the Tribunal was a
“De Novo” hearing, i.e. a full re-hearing of the case; that it 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 their case, and that there would be an opportunity for crossexamination
by the Appellant.
The Chairperson explained that following this, each party 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 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.
All witnesses were then sworn in.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Tenant, Mr Khalil, said that he and his wife had been tenants in the dwelling since
the 24th July 2010 and still resided there. He had paid a deposit of €675 at that time, and
the rent was also €675 when they moved in. He had lodged a dispute application after
they were asked for a rent increase by the Landlord from €700 to €900 per month. They
said they could not pay the increase requested by the Landlord, which he and his wife
believed was above the market rent in their area for similar one bedroom dwellings. Their
view at the time was that the market rent was approximately €725-€750 per month. They
were then served with a Notice of Termination on the 6th July 2015, to expire on the 1st
November 2015, giving them 112 days’ notice. They approached Threshold for advice
and were told that a notice of rent review should have been served on them and dealt
with before they were served with the Notice of Termination. They had only become
aware of the new rent being sought when a new letting agreement was sent to them by
the Landlord’s letting agent in June 2015 that showed the new rent of €900 per month.
They had then offered to pay an extra €25 per month, which was the increase that they
had paid in the previous year. This was rejected by the Landlord, who indicated that the
figure of €900 was already between €100 and €200 less than the market rent for the area,
in her view. Later on, in August 2015, the Tenant had made another offer of €850 per
month, which was again rejected by the Landlord. The Tenant submitted to the Tribunal
recent copy extracts from property letting websites in support of his contention that the
market rent should have actually been in the region of €900-€950 per month. However he
agreed that of the three properties in Dublin 8, only one of them was directly comparable
to the dwelling, but was not in the same area.
The Landlord carried out two inspections of the dwelling after serving them with Notice of
Rent Review, once allegedly without permission.
In relation to the claim by the Tenant that there were maintenance issues that had not
been dealt with by the Landlord, he said that the bathroom ceiling leaked three to four
years ago, from a shower in the apartment above theirs, which was then fixed by a
maintenance person on behalf of the Landlord. He had been told that it was permanently
repaired, but the leak had continued to occur from time to time. They have to leave a
bucket there from time to time, the last time being about ten days prior to the hearing. He
had reported this to the managing agents’ maintenance people in the apartment block
and when there was no response, he reported it to the Landlord’s letting agent who had
sent them the new letting agreement.
Cross-examination
Under cross-examination by the Landlord’s solicitor, the tenant also claimed that the
fridge/freezer was rusty, the freezer was not freezing properly, the washing machine
needed maintenance and both items needed replacement. He also said that the dwelling
had not been painted for the previous five years, since they had commenced living there.
The Tenant said he had informed the Landlord of the problems with the fridge/freezer and
washing machine at the time of the July 2014 inspection, and she herself had mentioned
then that the dwelling needed repainting.
It was put to him that the Landlord knew nothing of the bathroom leak until November
2015 when the Tenant’s appeal was lodged with PRTB and that he should have
contacted the Landlord directly, not the letting agent. The Tenant said he thought it was
the letting agent who was dealing with complaints and maintenance issues, and that he
had no contact details for Ms Flanagan. He confirmed that he had got a number for her
late husband in relation to having the bathroom leak fixed some years previously, and
said her late husband had carried out general maintenance on the dwelling.
The Tenant confirmed when it was put to him that a number of requests made by him for
maintenance and other issues had been dealt with by the Landlord over the period of the
tenancy. These included the provision of a new bed following their request for one,
immediate repair of the hot water system when it broke down. He acknowledged that
draughts from the balcony double doors were resolved, also the toilet and shower hose
were fixed and a smoke detector replaced after an inspection was carried out in July
2014, though he did not remember the latter items being repaired.
The Tenant confirmed that he did receive a rent review notice following the adjudication
hearing, in the sum of €1,050 per month, which he had accepted by email to the letting
agent on the 3rd November 2015. He also tried to change his standing order with his
bank to that sum, but when he did not receive a response from the letting agent he did
not complete his instruction to the bank. He agreed that there were very few properties
similar to the dwelling available at the time of the Tribunal hearing, and the details he had
submitted were for inferior properties and had lesser rental values. He also accepted that
the dwelling is in good repair except for the bathroom leak.
In answer to a question concerning how many beds there are in the dwelling, he
confirmed that there had been an extra bed in the living room over the Christmas period
when family members came to stay, but that bed has now been removed and is no longer
there.
Respondent Landlord’s Case:
Ms Flanagan said that she and her late husband had rented the apartment to the Tenant
and there had been no issues up to about a year prior to the hearing. She had contacted
the tenant through her previous letting agent, and the Tenant had her contact number and
that of her husband, and their email addresses. She and her husband had dealt with the
tenancy jointly, but contact was mostly by email to her husband while he was alive.
The Landlord had asked her new letting agent to make contact with the Tenant to
negotiate a new rent, and after the agent had received no response to her efforts to
contact the Tenant she had asked her to draft a new agreement showing the proposed
new rent of €900 per month and to send it to him. Once the agreement was sent to the
Tenant there was an instant response, she said. In 2013, her husband was very ill and
died shortly afterwards, and they had asked for an increase of €50, and got the response
that the Tenant would pay €25. She believes that the rent was below market rent for a
number of years, despite these years being during the recession period.
The first the Landlord knew of the leak in the bathroom was when she received the Notice
of Appeal. She said no contact was made with her about it although she said the Tenant
should have had her mobile number from the inspection she carried out in 2014. She had
noticed towels stuffed under the balcony doors during the inspection, and she had never
been told of any difficulty with the doors. The problem turned out to be that the hinges
had loosened, and this and other matters were then dealt with by her maintenance
person, who was present at the hearing to give evidence.
There was no mention at the inspection in July 2014 of any difficulties with the fridge,
washing machine or a bathroom ceiling leak, which appeared to her not to be a new stain
but to have been there for some time. No contact was made with her about it at any
stage. She has now contacted the management company about it and it is currently
being dealt with. The Landlord said she thought that the item attended to by her husband
in 2011 was the replacement of the water pump. The dwelling was fully painted in 2010,
when the apartment was four years old. She has fully attended to any repairs that the
tenant requested.
In relation to the market rent, she had investigated other values locally on the day prior to
the hearing and found that rents were between €1,100 and €1250 for similar apartments
with a similar specification. The Landlord said she had issued a rent review notice after
the adjudication hearing, but before the determination had issued to the parties,
increasing the rent to €1,050 to take effect from 16th November 2015. She had not
backdated it, as opposed to the adjudicator’s determination, which had set it to
commence from the 1st September, at a rent of €1,100.
In cross-examination by the Tenant, the Landlord said she was not aware of any
conversation the Tenant had with her husband at the time the water pump was fixed
when Mr Khalil said he mentioned the leak to him.
Evidence of Seamus McKeown
The witness said he had attended the dwelling in July 2014 when he repaired the double
doors to the balcony and did some other work there, but said he heard nothing then about
the bathroom leak. He was of the opinion that the owner of the apartment above the
dwelling had fixed the leak, but the ceiling in the bathroom was not repainted, as he had
seen it on the 16th December 2015, and did not think water was coming through then and
that it was an old stain. He was also of the opinion that the dwelling was in very good
condition generally.
On cross-examination he agreed that the leak could have been happening from time to
time, depending on how the shower in the apartment above was being used, even though
it had been fixed previously.
Summing Up by the Parties
Landlord
The Landlord’s representative said she had given evidence of what she believes is the
market rent for the dwelling, and also that it is in good repair. Their submission is that the
market rent should be at least €1,100 if not €1,150.
Tenant
The Tenant submitted that his case consisted of the matters stated in the Notice of
Appeal, which he believed he had given sufficient evidence on during the hearing.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The tenancy commenced on 24th July 2010 and is still in being.
2. The rent for the dwelling is currently €700 per month.
3. A deposit of €675 was paid by the Tenant on the commencement of the tenancy.
4. The parties agreed that the Notice of Termination served on the 6th (and 13th) July
2015 was invalid.
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 the market rent for the dwelling is €1,050 per month,
to take effect from the 16 November2015.
Reasons:
1. The Tribunal has studied the submissions and case file in this dispute, together with
the evidence heard from both parties, in relation to this issue, and is satisfied on the
balance of probabilities that the market rent for the dwelling is €1,050 per month. While
the Tenant did submit three specific examples of rents being sought for one bedroom
apartments in the general vicinity of Dublin 8, he agreed that none of them were directly
comparable to the dwelling which is the subject of this appeal. The evidence of the
Landlord regarding rents for similar properties in the area was accepted by the Tribunal.
Moreover, the Tenant himself confirmed that he had agreed, by email to the letting agent
dated 3rd November 2015, to pay the new rent of €1,050. He also said that he had
attempted to change his standing order to give effect to this new rent but discontinued the
instruction to his bank when he got no confirmation of the Landlord’s agreement to let him
remain on paying the new rent. This is evidence by his own action that he believed that
the market rent was in or around the proposed figure of €1,050 and that he was willing to
pay rent in this amount.
2. The Tribunal finds that the staining of the bathroom ceiling is not such that it would
be the cause of a reduction in the monthly rent for the dwelling.
3. The Tribunal finds that it is reasonable for the new rent of €1,050 to be paid by the
Tenant from the 16th November 2015, as this was the date on which the review notice
required a new rent to be paid, and the Tenant himself had actually agreed to do so from
that date.
7.2 Finding: The Tribunal finds that the Tenant’s complaints that the Landlord was in
breach of her obligations to maintain the dwelling pursuant to Section 12(1)(b) of the Act
are not upheld.
Reasons:
1. The Tribunal finds, on the balance of probabilities, that the items complained of by
the Tenant were not sufficiently substantiated by his evidence, and accepts the evidence
of the Landlord that various repairs were carried out and maintenance undertaken as
required during the term of the tenancy. In particular, it is not clear to the Tribunal that
the Tenant reported the items referred to in his Notice of Appeal to the Landlord, being
the allegedly faulty fridge/freezer or the washing machine, so as to allow the Landlord to
comply with her obligations. The Tribunal accepts that the ceiling in the bathroom has
staining on it from a previous leak from the apartment above, but notes that it was
repaired when originally reported to the Landlord’s late husband. The Tribunal also
accepts the Tenant’s evidence that there were further leaks sporadically since then, but
as these were not reported to the Landlord, she cannot be expected to do more than she
actually did. The Tribunal notes that, following receipt of the Notice of Appeal which
referred to the leak, she made contact with the management company for the apartment
block to ensure that the owner of the unit above hers attends to the repair.
2. The Tribunal accepts that it is not unreasonable for the Tenants to request that the
dwelling be painted given that they have resided there for four and a half years.
However, as this request was not made directly to the Landlord, and there were no
particular reasons why such work might have been needed, a failure to have the painting
carried out cannot be said to be a breach of her obligations under the Act.
8. Determination:
Tribunal Reference TR1115-001442
In the matter of Shakeel Khalil (Tenant) and Maureen Flannagan (Landlord) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The market rent for the dwelling is €1,050 per month, payable by the Appellant Tenant
from the 16th November 2015, unless lawfully varied, and the Appellant Tenant shall
pay the sum of €900 to the Respondent Landlord, being the outstanding amount of the
new rent due to the date of the hearing, within 21 days of the date of the Determination
Order, in respect of the tenancy of the dwelling at 2 Ardee Court, Cork Street, Dublin 8.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 08/02/2016.
Signed:
Anne ColleyChairperson
For and on behalf of the Tribunal.

Loughnane v Woods

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0315-001054 / Case Ref No: 0414-11524
Appellant Third Party: Moya Loughnane
Respondent Landlord: Kevin Woods
Address of Rented Dwelling: Apartment 11, Elworth Court, Irishtown, Athlone , Co. Westmeath
Tribunal: Gene Feighery (Chairperson)
Louise Moloney, John Keaney
Venue: Ante Chamber, Athlone Municipal District, Civic Centre, Church Street, Athlone, Co. Westmeath
Date & time of Hearing: 03 June 2015 at 2:30
Attendees:
Moya Loughnane, Appellant Third Party
Denis Cronin, Appellant Third Party’s Agent
Patricia Connell, Appellant Third Party’s Agent
Kevin Woods, Respondent Landlord
Breege Woods, Witness for Respondent Landlord
Lisa Marie Blake, First named Notice Party
Keith James Greene, Second Named Notice Party
In Attendance:
Gwen Malone Stenographers
1. Background:
On 14/04/2104 the Third Party made an application to the Private Residential Tenancies Board (“the PRTB”) pursuant to Section 76 of the Act. The matter was referred to a mediation which took place on 11/12/2014. As no mediated settlement was reached, the matter was referred to a Tenancy Tribunal.
An appeal application was received on 03/03/2105. The grounds of the appeal were Anti-social behaviour, breach of landlord obligations and Other. The appeal was approved by the board at their meeting on 31/03/2015.
The PRTB constituted a Tenancy Tribunal and appointed Gene Feighery, Louise Moloney and John Keaney 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 03/06/2015 the Tribunal convened a hearing at the Ante Chamber, Athlone Municipal District, Civic Centre, Church Street, Athlone, Co. Westmeth
2. Documents Submitted Prior to the Hearing Included:
PRTB File
3. Documents Submitted at the Hearing Included:
Letter from Tenant of the Appellant Third Party terminating his tenancy and seeking return of security deposit dated 6 February 2014.
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 Third Party in this case) would be invited to present her 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 Third Party. She told the parties that the notice parties would also be given an opportunity to make a submission. The Chairperson explained that following this, the parties would be given an opportunity to make a final submission.
The Chairperson clarified that Tribunal was a fresh hearing of the case 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.
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 Third Parties Case:
Evicence of Moya Loughnane:
The Appellant Third party told the Tribunal that she does not live in her apartment which is located on the first floor of a complex, next door to the Respondent Landlord’s dwelling, the subject of this disupte. She said her apartment is an investment property which provides her income and her pension.
She said that arising from serious anti-social behaviour engaged in by the Respondent Landlord’s tenants, for which they had been convicted in the courts, it has not been possible for her to realise the investment on her apartment and this has had a negative impact on her financial situation. She explained that it is almost impossible for her Agent to find tenants for her apartment and that a number of prospective tenants had declined to enter into a tenancy agreement when they became aware of the identity of the tenants, their court appearance and convictions.
She described how her former tenant had left in fear and because of excessive noise and that as a result her apartment had been vacant for 4 months in or about the end of 2013 until in or about March 2014 when she said she could only achieve rental income of €300 per month, which she said represents half of the current market rent available for similar apartments in the area. She described the anti-social behaviour engaged in by the Respondent Landlord’s tenants as serious and included drug dealing, harassment and intimidation. She supported her evidence with a media report stating that the tenants were convicted of drug dealing within the vicinity of the dwelling at the material time.
The Appellant Third Party stated that she had personally spoken with the Respondent Landlord about the problems associated with his tenants but that his lack of commitment to finding a solution resulted in the tenants remaining in occupation of the dwelling. She said that in addition to her contact with the Respondent Landlord her Letting Agent and a representative from the Management Company for the apartment complex had also attempted to engage with the Respondent Landlord on numerous occasions in an effort to resolve the matter but that this had also failed.
The Appellant Third Party stated that she personally had no interaction with the Respondent Landlord’s tenants and that she had sympathy for their drug addiction. She said that she was very surprised to learn at the Tribunal Hearing that although the Respondent Landlord told her he was doing everything he could to remove his tenants from the dwelling, he had signed their renewal application for rent supplement payments and he had issued them with a further 12 month fixed term lease in March of 2015.
Evidence of Denis Cronin:
The Appellant Third Party’s Agent said that in 2013 he began receiving complaints about the residents in the Respondent Landlord’s dwelling. He said the complaints ranged from loud music, late night parties to drug dealing. He alleged that no-one is willing to make a complaint in writing. He said that the Appellant Third Party’s tenant terminated his tenancy in 2013 and thereafter it had been extremely difficult to re-let the apartment. He said there were four holes in the door of the Respondent Landlord’s dwelling which he said were the result of Garda drug squad raids. He said that one prospective tenant, who worked in a multinational company locally gave him a deposit to enter into a lease for the Appelant Third Party’s apartment, but when he heard about the identity of the Respondent Landlord’s tenants, he asked for his deposit back and did not enter into the tenancy. The original letter from the tenant, which formed part of the case file, was submitted at the Tribunal in evidence in support of this claim.
The Agent said that he had not spoken with the Respondent Landlord. He said that a meeting had been arranged between them to discuss the ongoing problems with the tenants in his dwelling, but that the Respondent Landlord had failed to attend.
Evidence of Patricia Connell:
The Management Agent for the apartment complex stated that on receipt of any complaints regarding a property she dealt directly with owner/landlords of the complex. She said she had received a number of complaints from residents and cleaning/maintenance/delivery staff/persons about the Respondent Landlord’s tenants and about the condition of the common areas in the apartment block. She said that the outer door of the complex was held permanently open by a brick, that groups of youths congregated in the stairwell, that there was evidence of food thrown against the walls and that syringes were found. She said that she sat outside the apartment block for about 15 to 20 minutes one one occasion and that she observed extensive ‘comings and goings’ that were not consistent with normal residential use.
She said that she contacted the Respondent Landlord on so many occasions about the reported problems with his tenants that she was sure that he grew to be’ sick of her’. She said that he told her he would sort the problems.
Respondent Landlord’s Case:
Evidence of Kevin Woods:
The Respondent Landlord told the Tribunal that following on from his conversation with the Appellant Third Party in or about July 2013 which she discussed his Tenant’s anti-social behaviour he issued his tenants with a notice of termination. He said that when the notice period had expired his wife, accompanied by members of the Garda Siochána went to the dwelling to take back possession but the Tenants refused to vacate and they were unsuccessful in gaining vacant possession of the dwelling.
He said that he attended at his Solicitors office but when he confirmed that his tenants were not in rent arrears and continued to pay rent, the Solicitor refused to take on the case. He confirmed that he had not applied for, or sought advice from the PRTB, Threshold or any other body for assistance in resolving the matter. He said that when he became aware of the newspaper article concerning his Tenants’ conviction he served a second notice of termination on them dated 23 February 2015. He said that he asked his Tenants when were they leaving and they told him they were not.
He said he did not personally live in the vicinity of the dwelling but that he was aware from numerous complaints and newspaper reports that his tenants engaged in anti-social behaviour. He said he wanted to stop it. He said that he told his tenants there could be no more parties and that last year he had received no complaints and he assumed that things had queitened down. He acknowledged however that there was an application for dispute resolution lodged with the PRTB in October 2014.
The Respondent Landlord said he called to the three other apartments within the apartment block where his dwelling is situated and he asked the residents there if they had any complaints against his tenants. He said there were none, however he believed the account of the Appellant Third Party regardiing anti-social behaviour and he was aware of the media reports regarding this tenants’ criminal convictions.
Questioned by the Appellant Third Party the Respondent Landlord confrmed that despite the fact that he told her he was issuing the tenants with a notice of termination, he had in
fact signed his tenants’ application for rent assistance payments and that he had renewed his tenancy with them in or about March 2015.
Evidence of Breege Woods:
The Respondent Landlord’s witness stated that she had accompanied the Garda Siochána to the dwelling in or about July 2013 at the expiration date of the notice of termination for the purposes of gaining vacant possession of the dweling. However she said the tenants refused to vacate and the Gardai could not become involved in a civil dispute between the parties.
Evidence of first named Notice Party – Lisa Marie Blake:
In her submission the first named notice party stated that there had only ever been one complaint about noise/party at her dwelling and that when the complaint was investigated there was no problem and that she was in the dwelling alone at that time. She alleged that the Third Party’s Agent did not like them from the start of the tenancy and that there were a number of unjustified complaints levelled against them by him.
She rejected the Appellant Third Party’s evidence that she or her partner engaged in anti-social behaviour as alleged or that there were drugs in the dwelling, or that there were syringes in the stairwell or that there were holes in the door following raids by the Garda Drug Squad. She said that the second named notice party had an extremely large family and that accounted for the amount of callers to the dwelling.
She told the Tribunal that the caretaker of the dwelling visited them once a week to collect the rent on behalf of the Respondent Landlord and he had never found anything wrong with the dwelling. She said he sits with them and has a cup of tea. She said their rental payments are up to date and that is why the Garda Siochána was unable to evict them. She also rejected that adjoining tenants were afraid of them and she said that they also often joined them in the dwelling for a drink.
She said that the Appellant Third Party’s problem renting the apartments had nothing to do with them but rather it is because the apartments are damp and cold and that the asking rents are too high. She said that the dirt on the walls in the common area was from a very large white dog that belongs to tenants within the apartment block.
Questioned by the Appellant Third Party as to whether or not she had been convicted of drug dealing on two separate occasions, she confirmed that this was correct but she said that she did not go to jail and had received a suspended sentence.
Evidence of the Second Named Notice Party- Keith James Greene:
In his submission to the Tribunal the second named notice party said that he had experienced a hard life and that he formerly had a drug problem. Nevertheless he said is now doing well and he has managed to turn his life around. He said that the Garda Siochána called to the dwelling on three occasions but they never found any drugs and he said that his latest conviction was not for heroin but for Diamorphine.
He said he was the victim of unjustified complaints about noise, parties, visitors, syringes and every couple of months there were more accusations. He said that he has a very large family and that the intercom in the building is broken so people shout up to him for the key to let them in.
He said other residents in the apartment block told him that they had been asked to sign a letter to have him evicted but that they had refused and that the Respondent Landlord
had issued them with a new tenancy agreement commencing in March 2015. He said their rental payments are up to date.
6. Matters Agreed Between the Parties
N/A
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 7.1.
The Tribunal finds that the Appellant Third Party satisfies the required conditions under section 77 of the Act which entitles her to refer a complaint to a Tribunal hearing in circumstances where the Respondent Landlord of the dwelling has breached his duty owed to her under section 15(1) of the Act.
The Respondent Landlord did not dispute the fact that the referrer of the complaint (in this case the Appellant Third Party) is and has been directly and adversely affected by the breach of his duty alleged in the complaint, and that before making the refenece the referrer, by communicating or attempting to communicate with the relevant party to the tenancy concerned, (in this case the Respondent Landlord) took all reasonable steps to resolve the matter.
Furthermore section 75(4)(e) states that any reference to a party, without qualification are references to, in the case of a complaint mentioned in section 77 (i) the complainant, and (ii) the landlord of the dwelling concerned.
Finding 7.2.
The Tribunal finds that the Respondent Landlord’s tenants have engaged in anti-social behaviour within the meaning of section 17 (a) of the Act where in it states that :
‘to behave in a way that is anti-social’ means (a) engage in behaviour that constitutes the commission of an offence, being an offence the commission of which is reasonably likely to affect directly the well-being or welfare of others.’
Reason:
The Appellant Third Party and her witness having regard to the evidence before the Tribunal have demonstrated anti-social behaviour by the Respondent Landlord’s tenants. The Respondent Landlord confirmed that he is aware that his Tenants are anti-social and that he wanted to remove them from the dwelling. The anti-social behaviour by his tenants is further recorded and accepted by the Tenants themselves.
Finding 7.3.
The Respondent Landlord is in breach of his obligations under section 15 of the Act wherein it states that a landlord of a dwelling owes to each person who could be potentially affected a duty to enforce the obligations of the tenant under the tenancy. A person who could be potentially affected means a person who it is reasonably
foreseeable, would be directly and adversely affected by a failure to enforce an obligation of the tenant were such a failure to occur.
Reason:
The Appellant Third party, her Letting Agent and the Management Agent for the apartment complex satisfied the Tribunal that they had made every effort to communicate with the Respondent Landlord in relation to ongoing problems with his tenants arising from their anti-social behaviour in the dwelling and within the vicinity of the dwelling.
The Respondent Landlord stated that following his conversation with the Appellant Third Party he issued his tenants with a notice of termination. The Notice of Termination failed to comply with the required provisions specified in the Act and was therefore invalid.
The Respondent Landlord further stated that he sought legal advice from his Solicitor who told him that as long as the rental payments were up to date, he would not pursue the matter on his behalf. He said he accepted this advice and that he let the matter rest. He confirmed that he did not seek further assistance or remedy through the PRTB, Threshold or any other Agency.
He confirmed that he was aware that his Tenants engaged in anti-social behaviour. Despite this he allowed the tenancy to continue in existence and he compounded his breach in March of 2015 when renewed the tenancy with his Tenants.
Arising from the Respondent Landlord’s breach, it was reasonably forseeable that the Appellant Third Party could, and was, adversely affected. The breach has resulted in a negative financial impact on the revenue income of the Appellant Third Party and the Tribunal awards damages of €3,200.
The Tribunal calculated the loss of rent to the Appellant Third Party as follows:
Current market rent is €500 per calendar month.
Third Party received rental income of €300 per month from March 2014
Consequent loss of rental income = €200 per month
The period of loss is 16 months ( from March 2014 when the dwelling was rented @ €300 per month up to June 2015, the date of the hearing).
Therefore €200 per month X 16 months = €3,200.
8. Determination:
Tribunal Reference TR0315-001054
In the matter of Moya Loughnane (Third Party) and Kevin Woods (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
The Landlord shall pay the total sum of €3,200 in damages to the Third Party within 28 days from the date of issue of this Order arising from a breach of Landlord Obligations under Section 15 of the Act and by failing to enforce his Tenant’s obligations and allowing the Tenants to behave in an anti-social manner as set out in Section 17 of the Act.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 19/06/2015.
Signed:
Gene Feighery Chairperson
For and on behalf of the Tribunal.

McHugh v Rooney

 

 

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0215-001028 / Case Ref No: 0914-14378
Appellant Landlord: Frank McHugh
Respondent Tenant: Bernard Rooney
Address of Rented Dwelling: Flat 5, 41 Grosvenor Road, Rathmines , Dublin 6
Tribunal: Louise Moloney (Chairperson)
Ciara Doyle, Thomas Reilly
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 29 May 2015 at 10:30
Attendees:
Karen McHugh, Appellant Landlord’s Representative
Peter McHugh, Witness for Appellant Landlord
James Carroll, Witness for Appellant Landlord
Bernard Rooney, Respondent Tenant
Stewart Reddin, Respondent Tenants Representative
Grainne Griffin, Respondent Tenant’s Representative
In Attendance:
Gwen Malone Stenographers
1. Background:
On 24/09/2014 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 03/12/2014. The Adjudicator determined that:
1. The Applicant Tenant’s claim in relation to standards and maintenance of the dwelling is upheld.
2. The Respondent Landlord shall pay the Applicant Tenant the sum of €14,000 within 60 days being damages for breach of obligations in relation to standards and maintenance of the tenancy of dwelling at Flat 5, 41 Grosvenor Road, Rathmines, Dublin 6.
Subsequently the following appeals was received by the Landlord on 11/02/2015. The grounds of the appeal were Standard and maintenance of dwelling, Breach of landlord obligations and Breach of tenant obligations. The appeal was approved by the Board on 20/02/2015.
The PRTB constituted a Tenancy Tribunal and appointed Louise Moloney, Ciara Doyle, Thomas Reilly as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Louise Moloney 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 29/05/2015 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:
PRTB File
3. Documents Submitted at the Hearing Included:
Six Undated Photographs of the dwelling were submitted by the Respondent Tenant. The Appellant Landlord`s Representative said she had no objection to these photographs being submitted.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what capacity they were attending the Tribunal. She 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 while the Tribunal Hearing was a formal procedure the Tribunal would seek to be as informal as was possible; that the person who appealed (the Appellant Landlord) would be invited to present his case first including the evidence of any witnesses; that there would be an opportunity for cross-examination by the Respondent Tenant; that the Respondent Tenant would then be invited to present his case, including the evidence of any witness, and that there would be an opportunity for cross-examination by the Appellant Landlord. She said that members of the Tribunal might ask questions of both Parties from time to time.
The Chairperson explained that following this, the Appellant Landlord and the Respondent Tenants would be given an opportunity to make a final submission.
She stressed that all evidence would be taken on oath or affirmation and would be recorded by the official stenographer present, she reminded the Parties that knowingly providing false or misleading statements or information to the Tribunal was an offence punishable by a fine of up to €4,000 or up to 6 months imprisonment or both. The Chairperson drew the Parties attention to Section 7 of the Tribunal Procedures. She asked the Parties if they had any queries about the procedure, there were no queries.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the Board would make a Determination Order which would be issued to the parties and could be appealed to the High Court on a point of law only [reference section 123(3) of the 2004 Act].
The Oaths/Affirmations of Parties giving evidence were then sworn/affirmed.
5. Submissions of the Parties:
Appellant Landlord`s Case:
The Appellant Landlord`s Representative said that the Appellant Landlord`s main concern was that no evidence had been submitted by the Respondent Tenant to support his allegations, she said that the Respondent Landlord had to refute the allegations made. She said that the Respondent Tenant was not renting the dwelling in 1989, that he was renting a different flat in the same building from the Appellant Landlord, that the Respondent Tenant never made a complaint to her in all the time she was looking after the house in which the dwelling is situate. She said that the Respondent Landlord is her father, that her father had a bad accident in or about 2011, that he suffered a brain injury and was now a Ward of Court. She said that since 2011 she took over the management of the building in which the dwelling is situated and that she personally on a weekly basis put out the waste bins for the building. She referenced the confirmation from City Bins submitted to show that refuse collection was taking place and was paid for in respect of the building.
The Appellant Landlord`s Representative queried why the Respondent Tenant had not made any complaint to her from 2011 until the tenancy ended on the 9th of September 2014, she noted that the Respondent Tenant made his application to the PRTB on the 16th of September 2014.
The Appellant Landlord`s Representative said that there was a bad flood in 2012 which caused a lot of damage to the building in which the dwelling is situated and that this was a last straw in terms of the ongoing difficulties of managing the building. She accepted that the building was not in good condition and needed extensive work. She said that there were 8 flats in the building and that in 2012 she started the process of vacating the building. She said that a notice was put in the hallway, that the initial contact with the Respondent Tenant was verbal, that there were on going discussions and then letters were sent. She said that in view of the good relations with the Respondent Tenant over a long period of time there was a reluctance to start a more formal process. She said that offers were made to assist the Respondent Tenant in finding suitable housing and that in September 2014 at the end of the tenancy the Respondent Tenant moved to suitable accommodation.
The Appellant Landlord`s Representative said that in or about 2013/2014 she made contact with the Environmental Health Officer as she wanted to get official confirmation that the building was not habitable and not suitable for any Tenant. She said that renovating work to convert the building into a single residence commenced in 2014.
In the course of her submission the Appellant Landlord`s Representative said the dwelling was one of eight dwellings in the building, that the dwelling was essentially a bedsit on the first landing within the building comprising a bedroom and kitchen with separate bathroom which she said was exclusively for use by the Respondent Tenant.
In response to questions the Appellant Landlord`s Representative said that it was not possible for her to say if the accommodation rented by the Respondent Tenant from the Appellant Landlord in 1989 was suitable accommodation, she accepted that leaks occurred at the dwelling and she referenced the floods in 2012 which caused great difficulty in this regard.
In response to questions the Appellant Landlord`s Representative said that her father, the Appellant Landlord, prior to 2011 regularly attended to the maintenance of the building in which the dwelling was situated, that he had inspections from Housing Officers who raised requirements which he dealt with, that the Appellant Landlord personally did odd jobs on a regular basis and that the Respondent Landlord`s builder also attended the building and carried out repairs/maintenance work.
In response to questions, the Appellant Landlord`s Representative said that from 2011 the other flats in the building were never all occupied, that up to 5 flats may have been occupied, she said that there were 6 bathrooms in the building and if other persons were using the Respondent Tenant`s bathroom he could have prevented this by locking the bathroom door and taking the key which he was free to do. She said that the bathroom facility was adequate, she could not say if the cooker was replaced prior to 2011 but she confirmed it was not replaced during the period 2011 to 2014.
The Appellant Landlord`s Representative said, when asked about dampness in the bathroom and on the landing walls, that there were leaks following the flooding in 2012, that the building roof was replaced in 2012. She said that she accepted the building needed extensive work. She said that re letting the building when the renovation works are completed is not contemplated, that the building is being converted to a single dwelling, that there is one tenant left and that her brother, Peter McHugh, is waiting to move into the building.
Mr Peter McHugh, witness for the Respondent Landlord, said that there was no dispute that in recent times the building in which the dwelling is situated needed attention. He said that when in University he collected rent from the Respondent Tenant on behalf of the Appellant Landlord, that he had met with the Respondent Tenant and offered to assist him in finding suitable accommodation.
Mr. James Carroll, witness for the Respondent Landlord, said he is a builder. He said that he had fixed pipes, leaks, light fittings at the building in which the dwelling is situated at the request of the Respondent Landlord on an on going basis until the renovation work started in the Summer of 2014. He said there were major leaks at the building, that the pipes were very old, that the water to the building was turned off for three days in or about September/October 2014 to enable the pipework to be redone.
In response to questions Mr. Carroll said that he started working for the Respondent Landlord approximately 6 or 7 years ago, he could not say when the serious leaks occurred but he said that from 6 or 7 years ago small leaks did occur at the building, he said that one or two flats left taps running which over time caused problems
In the course of the Appellant Landlord`s submission, the Appellant Landlord`s Representative said that there were arrears of rent owing at the end of the tenancy. She said that no rent had been paid in respect of the tenancy in the dwelling for the period from the 9th of May 2014 to the end of the tenancy. She said however no issue is made in respect of rent arrears by the Appellant Landlord but she said she wanted to draw the non-payment of rent to the Tribunal`s attention.
The Appellant Landlord`s Representative accepted that the building in which the dwelling is situated was in disrepair in 2013/2014. She said that she received no complaints from the Respondent Tenant for the three years she was looking after the dwelling. She said that the change in flat made in or about 2002 was made by the Appellant Landlord at the Respondent Tenant`s request. She said efforts were made to negotiate the ending of the
tenancy in the dwelling and to assist the Respondent Tenant in finding suitable accommodation, that there was a reluctance to take a more formal approach given the length of the Respondent Tenant`s tenancy with the Appellant Landlord and the good relations that existed between the parties.
Respondent Tenant`s Case:
The Respondent Tenant said that he rented from the Appellant Landlord since 1989, that his tenancy in the dwelling commenced in or about 12 years ago. He described the dwelling as a small flat. He said that the cooker was not working properly as the rings were too slow. He said that the fridge in the dwelling was not working, that there was no food storage area in the dwelling, that the mattress for his bed was only replaced once during the tenancy, that there were issues with damp, that the heating for the dwelling was supplied by a two bar electric heater and that the windows were not working properly which caused draughts. The Respondent Tenant referenced the photographs submitted at the Hearing showing the condition of the dwelling. He said he found it difficult to sleep in the dwelling and his general health was affected.
The Respondent Tenant said that apart from the last two years of the tenancy the bathroom was not available for his exclusive use as two other tenants in the building used the bathroom. He said that towards the end of the tenancy the water was cut off, that the flow of water to the bathroom was always poor and he said that he had no water in the kitchen of the dwelling for a year.
The Respondent Tenant said that he had no choice but to stay living in the dwelling and that he was given help to find his current accommodation which he moved into at the end of the tenancy in the dwelling, he confirmed that his current accommodation is suitable.
In response to questions he said he did not make any complaint to the Appellant Landlord`s Representative in the years she was looking after the building as there was no point in doing so. The Respondent Tenant said that he did make complaints to the Appellant Landlord before 2011.
Mr. Stewart Reddin, the Respondent Tenant`s Representative, said that the Respondent Tenant was a tenant of the Appellant Landlord from 1989 to 2014, that over the course of time the dwelling, and the building in which the dwelling is situated, became un-inhabitable. He referenced the letters dated 15 July 2014 and 20 May 2014 sent by the Appellant Landlord`s Representative to the Respondent Tenant. He also referenced the letter of the 26 June 2014 from the Environmental Health Office who inspected the dwelling on the 24 June 2014 and found at that time there was no running water in the dwelling. He said that there was a failure by the Appellant Landlord to comply with his obligations concerning the standard and maintenance of the dwelling, he said this failure caused the Respondent Tenant distress. He said that the non-payment of rent from the 9th of May 2014 to the end of the tenancy arose because a rent allowance form was not signed by the Appellant Landlord. He said that the Respondent Tenant found the Adjudicator`s Determination fair and reasonable.
6. Matters Agreed Between the Parties
a. The relationship of Landlord and Tenant between the Parties commenced in or about 1989, the Tenancy in the Dwelling commenced in or about 2002 and ended on the 9th of September 2014;
b. The rent payable in respect of the dwelling had increased by various increments during the course of the Tenancy to €150 per week, the rent then reduced during the course of the tenancy to €110 per week which was the rent payable in respect of the dwelling when the tenancy ended.
d. Frank McHugh, the Appellant Landlord, is the Landlord of the dwelling.
e. The tenancy was not registered by the Appellant Landlord with the PRTB as is required by the 2004 Act.
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 therefore are set out hereunder.
Finding 1:
The Appellant Landlord is in breach of his obligations under Section 12 of the Act and in particular Section 12 (b) in respect of the tenancy in the dwelling. The Appellant Landlord shall pay the sum of €4,000 to the Respondent Tenant within twenty eight days of the date of issue of the Determination Order by the Board being damages for breach of his obligations in relation to the standards and maintenance of the dwelling during the tenancy.
Reasons:
The Appellant Landlord accepted in their submission that the dwelling was uninhabitable towards the end of the tenancy during the years 2013 and 2014. It is clear from the submissions by the parties that the Respondent Tenant was acknowledged as a good Tenant and also that no complaints were made by the Tenant during the last three years of the tenancy to the Appellant Landlord`s Representative who attended weekly at the building in which the dwelling is situate. The Tribunal notes that, given the long tenancy relationship between the Appellant Landlord and the Respondent Tenant, there was a reluctance on the Appellant Landlord`s part to engage in a more formal process to end the tenancy in the context of the renovation works required. Notwithstanding the reason for this, the Tribunal finds that this amounted to a breach of the Act by the Appellant Landlord in failing to serve proper written notice on the Respondent Tenant in accordance with the Act.
The Tribunal accepts the Appellant Landlord`s Representative evidence that she was trying to facilitate the Respondent Tenant in allowing him time to find alternative accommodation given the extensive renovation works required at the building in which the dwelling is situate and that she offered to assist him in finding such accommodation. The Tribunal notes that the Respondent Tenant found suitable accommodation and moved into this accommodation at the end of the tenancy in the dwelling.
The Tribunal accepts the Respondent Tenant`s evidence that there was a failure to comply with the standards and maintenance of the dwelling during the tenancy and that over time the dwelling became uninhabitable. The Tribunal notes that there is a conflict of evidence concerning the exclusive use of the bathroom associated with the dwelling and also concerning the period of time the water supply was disconnected in the dwelling.
The Tribunal notes the non-payment of rent from the 9th of May 2014 to the end of the tenancy on the 9th of September 2014, that no issue is made by the Appellant Landlord with regard to the recovery of this rent and that the non- payment was explained by the Respondent Tenant as arising from the failure to sign a rent allowance form.
The Tribunal finds that the sum of four thousand euro (€4,000) is having regard to all the evidence before the Tribunal an appropriate sum of damages for the breach of the Appellant Landlord`s obligations with regard the standards and maintenance of the dwelling during the tenancy.
8. Determination:
Tribunal Reference TR0215-001028
In the matter of Frank McHugh (Landlord) and Bernard Rooney (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 €4,000.00 to the Respondent Tenant within 28 days of the date of issue of the Determination Order by the Board being damages for breach of the Appellant Landlord`s obligations under Section 12 of the Act and in particular Section 12(b) in relation to the standard and maintenance of the dwelling in respect of the tenancy in the dwelling at Flat 5, 41 Grosvenor Road, Rathmines, Dublin 6.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 13/06/2015.
Signed:
Louise Moloney Chairperson
For and on behalf of the Tribunal.

 

McMahon v Baggot Court Developments

 

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

 

Medeiros v Hanrahan

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0215-001041 / Case Ref No: 1114-15479
Appellant Tenant: Susi Medeiros
Respondent Landlord: Michael Hanrahan, Joan Hanrahan
Address of Rented Dwelling: 48 Villa Park Garden, Navan Road , Dublin 7,
Tribunal: Finian Matthews (Chairperson)
Anne Colley, Brian Murray
Venue: Board Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearings: 08 June 2015, 03 July 2015, 09 July 2015 at 10:30
Attendees: Joan Hanrahan, Tribunal Respondent, Landlord, Michael Hanrahan, Tribunal Respondent, Landlord, Susi Medeiros, Tribunal Appellant, Tenant,
In Attendance: Madeleine Davis (Landlord’s agent)
Aoife Corcoran (Witness)
Danilo Notari (Witness)
Denis Maia (Witness)
Garda Eoin O’Doherty (Witness)
Garda Ciaran Campbell (Witness)
Garda Davide Laird (Witness)
Gwen Malone, Stenographers

1. Background:
On 27/11/2014 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 21/01/2015. The Adjudicator determined that in the matter of Susi Medeiros (Applicant Tenant) and Michael Hanrahan & Joan Hanrahan (Respondent Landlords) the Adjudicator, in accordance with section 97(4) of the Act, determines that:
1. The Notice of Termination served on 21 November 2014, by the Respondent Landlords on the Applicant Tenant, in respect of the tenancy of the dwelling at 48 Villa Park Garden, Navan Road, Dublin 7, is valid.
2. The Applicant Tenant and all persons residing in the above dwelling shall vacate and give up possession of the above dwelling within 14 days of the date of issue of a Determination Order by the Board.
3. The Applicant Tenant shall pay the total sum of €900.00 to the Respondent Landlords by way of 3 consecutive monthly payments of €300.00 on the 28th day of each month, commencing the next month after the issue of a Determination Order by the Board. This sum represents damages for breach of tenant obligations in respect of the tenancy of the above dwelling.
4. The enforcement of the Order for such payment of €900.00 will be deferred and the total sum owing reduced by the cumulative sum paid in the monthly instalment(s) made by the Applicant Tenant to the Respondent Landlords on each due date until such time as the total sum of €900.00 has been paid in full.
5. For the avoidance of doubt any default in the payment of the monthly instalments of €300.00 shall act to cancel any further deferral and the balance due at the date of default shall immediately become due and owing to the Respondent Landlords.
6. The Applicant Tenant shall also pay any further rent outstanding from 21 January 2015 (the date of the hearing) at the rate of €1,400 per month or proportional part thereof at the rate of €46.02 per day, unless lawfully varied, any any other charges as provided for under the terms of the tenancy agreement, for each month or part thereof, until such time as she vacates the above dwelling.
7. The Respondent Landlords shall refund the entire of the security deposit of €1,400.00 to the Applicant Tenant, on gaining vacant possession of the above dwelling, less any amounts properly withheld in accordance with the provisions of the Act.
Subsequently the following appeal was received:
Tenant : received on 24/02/2015. The grounds of the appeal: Other ; approved by the Board on 06/03/2015
The PRTB constituted a Tenancy Tribunal and appointed Finian Matthews, Anne Colley, Brian Murray as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Finian Matthews to be the chairperson of the Tribunal (“the Chairperson”).
On 22/04/2015 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 08/06/2015 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:
A copy of a contract of employment with a company called ‘Forever Living’ was submitted by one of the Landlords’ witnesses and shown to the Appellant Tenant. The latter stated that she did not run the company concerned, but that she had no objection to documentation being given to the Tribunal for information purposes.
An advertisement related to the dwelling downloaded from the website Daft.ie on the day before the Tribunal hearing commenced was submitted by the Respondent Landlords and shown to the Appellant Tenant. She had no objection to its being entered in evidence, stating that she had authorisation to advertise.
A receipt dated 21 March, 2014 for half of the deposit was submitted by the Appellant Tenant and shown to the Respondent Landlords who had no objection to its being entered in evidence.
4. Procedure:
Opening the Tribunal the Chairperson stated that it had been established to hear an appeal by the Appellant Tenant against a determination made following an adjudication held on 21 January, 2015 in the case of a dispute between the tenant and the Respondent Landlords in respect of a tenancy at 48 Villa Park Garden, Navan Road, Dublin 7. He introduced the members of the Tribunal to the parties.
He asked the Parties present and any witnesses to identify themselves and to state the capacity in which they were attending the Tribunal hearing. He confirmed with the Parties that they had received the relevant papers from the PRTB in relation to the case and that they had received and understood the PRTB document entitled “Tribunal Procedures”. Both Parties confirmed that they had done so. The Chairman said that he would be happy to clarify any queries in relation to the procedures either then or at any stage over the course of the Tribunal hearing.
The Chairperson then explained that the Tribunal hearing, as stated in its procedures, was not intended to be very formal, but that the Parties must follow any instructions given by the Chair, that evidence would be given under Oath or Affirmation, would be recorded by the stenographer present, and that based on that recording a transcript could be made available to the Tribunal if necessary, to assist it in preparing its report on the dispute. He said that the transcript would also be available to the parties with the consent of the Board of the PRTB and on payment of the relevant fee to Gwen Malone Stenographers. The parties confirmed that they had no objection to the arrangements for recording the proceedings. The Chairperson also indicated that, for data protection reasons, no other person was entitled to make a recording of the hearing, and asked if all persons present understood this requirement. All parties confirmed that they did so understand. The Chairperson also stated that it was against the law for anyone giving evidence to refuse to take the Oath or Affirmation, to refuse to produce any document in his control required by the Tribunal, to refuse to answer any question put by the Tribunal, or to knowingly provide materially false or misleading information to the Tribunal. He pointed out that an offence may be prosecuted by the PRTB through the courts and a successful conviction could result in a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson added that the Appellant Tenant would be invited first to present her case; this would be followed by an opportunity for cross-examination by the Respondent Landlords; that the Respondent Landlords would then be invited to present their case, including the evidence of their witnesses, followed by an opportunity for cross-examination by the Appellant Tenant. He said that members of the Tribunal would ask questions of both Parties and witnesses from time to time. He also directed that neither Party should interrupt the other when direct evidence was being given.
He also said that at the end of the hearing, both the Appellant Tenant and the Respondent Landlords would be given the opportunity to make a final submission should they so wish.
The Chairperson reminded the Parties that the Determination Order of the PRTB, based on the report of the hearing, would decide the issue between the parties and could be appealed to the High Court on a point of law only.
All persons giving evidence to the Tribunal were then sworn in.
5. Submissions of the Parties:
First day of hearing, 8 June, 2015
Appellant Tenant’s Case:
The Appellant Tenant provided details of viewing the dwelling and her initial negotiations with the landlords’ former agent, Mr. McGann. She said that when the agent told her she had been selected she asked him to let her see the lease before she paid a deposit. She said the former agent agreed, but asked her to pay the deposit in cash which she found to be suspicious. At that point she decided to record everything and asked the Tribunal if its members had watched the DVDs she had submitted. The Tribunal Chairperson put the tenant on notice that some of the video material on the DVDs appeared to have been obtained covertly on private property without the knowledge of the person being filmed and this could raise issues relating to the admissibility of such evidence. When the tenant referred to advice on the PRTB website for tenants to take photographs relating to tenancies, it was pointed out to her that this was intended to relate only to photographs of the condition of dwellings and their contents at the beginning and end of tenancies.
The Appellant Tenant said that when she again met the landlords’ former agent at the dwelling before the tenancy commenced they went over details of some final things that needed to be done to the house and also discussed details of what furniture was to be removed and what should be left, adding that she had told the former agent she had her own furniture. She said that after she had discussed the removal of a bed from one of the three upstairs bedrooms with the agent, and its replacement with her own bed, he told her that there was no problem with people sharing the dwelling with her i.e. that she could use the small bedroom as an office and that she could advertise and rent out the remaining bedroom.
She said that the agent said that before doing so she needed to send documentation to him so that he could add the additional names to the list of tenants and register them with the PRTB. She had no problem with doing this. She added that when she asked the agent if he had a limit on the number of people that could live in the dwelling, he was not clear about this, but referred to a couple in one room and another couple in another room from which she took it that he had a preference for couples, but no overall limit on numbers was mentioned. When asked by the Tribunal if the number of bed spaces already in the dwelling might be related to the number of persons the dwelling was suitable for, she said that this suggested to her that there could be up to six people in the dwelling, but she added that she did not think that the agent was putting any limit on the number of people she could share the dwelling with.
The Appellant Tenant also said that she needed to have other people living with her because of her medical condition and that her previous accommodation had become too small and had only one bathroom. She said that the dwelling was perfect for her because it was larger and had an additional bathroom downstairs, which was also necessary for her medical condition. She added that she had rented the entire dwelling, so that she would be able to choose the people who would live with her. She maintained that in the interests of harmony in the dwelling it was not appropriate that the landlords should be able to interfere in the process of who was to live with her. She said that she gave a copy of the standard lease, she received initially to everybody coming to live with her so that everybody knew what the landlords’ rules were. She added that the landlord’s agent agreed that she would deal with what she termed the sub-tenants, and that she regarded herself as the head tenant. She re-iterated that she informed the agent of everybody living in the dwelling at all times, but accepted that she had never received confirmation of consent that it was in order for the various people to move in. She was of the view that confirmation was unnecessary because the issue had never been raised.
When it was pointed out to the Appellant Tenant that there was a requirement in her lease to the effect that the tenant was not to assign or sublet, part with possession of the property, or let or allow any other person to live at the property without the Landlord’s written consent, she said that this was not in the copy of the lease she signed. She added that there were a number of issues she had with the draft she received and that on the advice of Threshold she sent an e-mail to the agent asking for a number of changes to the lease. She said that all of the changes requested were agreed to. The special terms and conditions she said were agreed to related to the use of one bedroom as a home office, permission to keep one cat in the dwelling, responsibility for cutting the grass, chimney cleaning, keeping of a gas heater in the conservatory and the inclusion of an inventory in the lease. She said that the necessary amendments to the lease were made by hand and she signed five copies of the amended lease at the bottom of each page and at the end. She said that she asked for a copy of the amended lease but said that the agent had not provided this because it had not yet been signed by the landlords.
In relation to the amendments to the lease the tenant said that the agent had forgotten to make one of these and she had taken the opportunity herself to handwrite “N/A”, i.e. not applicable, opposite paragraph 3.12 i.e. the requirement not to assign, sub-let or allow anyone else to live in the dwelling without the landlords’ permission. She said that she never afterwards received a copy of the lease as signed by the landlord, even though she had asked for this and had even tried to photograph it on the day she signed it. She accepted however that she had received confirmation by e-mail of the amendments she had sought by e-mail. When asked later in her evidence why in e-mails exchanged between her and the landlords’ agent at the outset of the tenancy in relation to clarifications to her lease, she never sought a change in the requirement that the tenant was not to assign or sublet, part with possession of the property, or let or allow any other person to live at the property without the Landlord’s written consent, the tenant said that she had asked for this over the phone. She said that the agent had undertaken to send her on the amended lease but had not done so. She agreed that as there were a lot of other things going on at the time she may not have followed this up.
The Appellant Tenant also said that she had signed the amended lease in the agent’s office, which did not give her any opportunity to check if all the matters agreed had been attended to. The agent then gave her the keys, but when she went to the dwelling she said she had great difficulty opening the door. She said when she contacted the agent about this by e-mail he reacted badly. She said she also sent an e-mail about other items that needed to be attended to, including broken glass in the conservatory which meant she could not move in because she could not bring her cat with her. She said that when she did move in the shower was still not working properly, and that the landlord did not come to remove the furniture that was to be removed until the end of June. When he came she said he removed a green sitting room suite and was also supposed to remove a double bed. She said that the bed was not removed and is now in the garage. She said she also asked the landlord to remove a leather suite so that she could sleep downstairs in the living room, but it was too big to go through the door. She added that at that stage there was no one else living with her in the dwelling.
The Appellant Tenant said that in the early days of the tenancy, and after she had an operation, she asked people from the previous house she had rented to come to the dwelling to help her; she said that these people were coming and going and that some of them spent nights in the dwelling from time to time but were still paying rent to her for the other house. She said that when the landlord’s agent subsequently notified her that he wished to inspect the house she told her visitors to absent themselves on the day because they did not live in the dwelling and were not supposed to be there during the inspection. She said that during the inspection the agent accused her of having people living in the house, which she denied and said that the people were only visitors. She added that she showed him the papers for a person called Francis, who was one of the first persons that had come to share the house with her. She said that the agent spoke to her about reports from neighbours of teenagers in the house who were drinking on the lawn during the day, which she told the agent was untrue. She said that after the inspection the agent disturbed her by phoning her many times a day and sending e-mails. She said she phoned the landlord directly about this and asked him to change to another agent, because she felt the agent she was dealing with held a grudge against her.
Responding to a question from the Tribunal, the tenant said she had changed the lock on the dwelling, but that she had had the original lock fixed and re-installed around 26 April, 2015 and that the landlords’ original keys should now work in that lock.
The Appellant Tenant said that she could not recall the exact number of what she termed ‘sub-tenants’ who had been living in the dwelling but in the first instance there were 5 other people living there. She said that she charged each of these people €300 per person in rent. When it was pointed out to the tenant that she was receiving more from the other people living in the dwelling than the rent of €1400, the tenant stated that she had to pay the rent for March, April, May and June of 2014 by herself. Asked about e-mails she said she had sent to the landlord’s former agent, Mr. McGann, in relation to people who were moving into the dwelling she said that she sent an e-mail in relation to a person named Elvis on 25 September, 2014, a person named Jordi on 30 September, and a person named Ausra on 12 October, 2014.
The Appellant Tenant said that the 5 people previously living with her in the house were no longer there. She said that there were now two people named Will and Sam living in the dwelling and that she had notified the member of staff of the landlord’s letting agency with whom she had dealt, Mr. McGann, of these on 18 April, 2015. When it was pointed out to the tenant that Mr. McGann had left the agency some months previously, she said that she did not know when he had stopped being the landlord’s agent. She confirmed that she had received a number of e-mails from the landlords’ current agent, Ms. Madeleine Davis, but that Ms. Davis never told her that she had taken over from Mr. McGann. The tenant said that she may have copied her April e-mails to Mr. McGann to Ms. Davis but she was not sure about this.
The Appellant Tenant told the Tribunal that between the first five people living in the dwelling and the two who are there now, other people who lived there at times included a person named Rebecca, the Landlords’ two witnesses, Danilo Notari and Denis Maia, and two other persons named Monica and Melanie. She claimed that she had notified the landlord’s agent about all of these residents. She said that people came and went, but that the maximum number of people living in the house at any one time was eight. She said her intention was to have two people in each of the 3 bedrooms upstairs but that there were over-laps at times between people arriving and leaving which pushed the number living in the dwelling upwards. She herself slept in the downstairs living room.
The Appellant Tenant was asked about the house rules she drew up herself and gave to people staying in the dwelling and in particular about Rules 1 and 2 which stated “Do not ring on the house bell but call on the phone instead. If you are expecting someone tell your friend or delivery to call the phone.” and “Ignore the house bell but do not stay in view when somebody is at the door ringing the bell”. She said that the first reason for this was that it was very important for the bell not to be ringing too loudly during the translation work that she does from home. The other reason was that if she answered the door and the caller was for someone else in the dwelling, she could be breaching that other person’s privacy if she brought the caller into the house and that other person was asleep or did not want to speak to the caller. She also said that she wanted people to stay out of sight when someone was ringing the bell, because if they did not do so the person ringing the bell would keep ringing it forever.
The Appellant Tenant was also asked about another house rule which stated that “Visitors are not allowed to use the house address for any purpose. The house address is not to be put in any circumstances on the internet.” She said that this was because people visited the house very often but she did not want them using the address for the purpose of receiving mail, since they were not living there. She said that the address was not to be put on the internet for security reasons, and added that when she was advertising she did not include the address to avoid queues forming at her door. This was intended to be courteous to other families living on the road.
The tenant added that if anyone broke a house rule she would point out to them what they had done wrong and would sometimes fine them part of their deposit of €350 and if they repeatedly broke the rules she would give them notice because she could not live with a person who was disturbing the house. Asked what she would do if a person refused to move out, she said that the conditions they agreed to on coming into the dwelling gave her permission to move that person’s belongings to a hostel, although in one case she had moved a person’s belongings to that person’s parent’s house. She added that she considered that she as a tenant, rather than the landlord, was entitled to give other people notice because she lives in the dwelling and it is her responsibility to run the house well and not allow any bad behaviour. She outlined her difficulties with one tenant whom she asked to move many times because she was ‘unbelievable’ and had run after the Appellant Tenant with a knife.
Under questioning by the Tribunal, the Appellant Tenant agreed that she attempted to create sub-tenancies on a month to month basis when persons moved into the dwelling. When it was pointed out to her that under the Act this required the prior written agreement of the landlords she said that she had been granted such agreement under her lease and had told the agent that she would deal with people coming to share the house with her and would draw up house rules for that purpose. The only condition she was subject to in her view was that necessary documentation relating to people moving in be sent to the landlords’ agent.
At that point in the hearing, and with the consent of the Appellant Tenant, her direct evidence was interrupted to allow some of the Landlords’ witnesses to give their evidence.
Respondent Landlords’ case
Evidence of Aoife Corcoran
Ms. Corcoran told the Tribunal that she lives directly across the road from the dwelling with her parents and her sister. She said that local residents were upset about the constant stream of people coming and going from the dwelling over the previous 12 to 18 months, with a lot of people hanging around late at night. She described how when she came home from work a couple of weeks prior to the hearing the bins in the dwelling had been spilled in the garden and there was an irate young lady there, a previous tenant, with no shoes on. She said that she was forced to call the Gardai and the landlords’ agent and that this was not the first time she or other neighbours had to call the Gardai. She added that the neighbourhood had been quiet and friendly, but the residents now had to live with constant disturbance associated with the dwelling. She said that on another occasion a bucket of water had been emptied out from one of the windows over a tenant in the garden.
In response to questions from the Appellant Tenant, Ms. Corcoran said that she had seen the Appellant Tenant walking down the lane in the estate to pick up numerous people and bring them to the house. She said that on one occasion she returned from a weekend away to see a man sitting on a suitcase outside the dwelling with a duvet in his hands and that the person remained there for a couple of hours until a taxi came to pick him up. She also said that on one occasion in 2014 she had met the landlords’ former agent at the dwelling. She said that the agent could not gain access to the dwelling and that she offered the agent assistance if he needed it. She also said that on two occasions she saw a former occupant outside the dwelling, once with a stick and once with no shoes on and could see that the person was attempting to gain entry to the dwelling.
Responding to a question from the Tribunal, Ms. Corcoran said that while her family’s initial concerns related to the volume of people coming in and out of the dwelling, there was speculation later on about what type of business might be going on at the dwelling and that there were a lot of men coming in and out of the house. She added that their concerns were heightened when they saw at least three young people in upset states outside the dwelling unable to gain entry. She said that she felt that there was something funny going on when the upkeep of the dwelling was neglected, bunk beds were seen being brought in, the curtains were removed and the garden was left untended.
Evidence of Danilo Notari
Mr. Notari said that when he came to Dublin on 29th January, 2015 he sought accommodation and found the dwelling on DAFT.ie. He sent an e-mail to the Appellant Tenant and on 5 February met her at the Maxol garage on the Navan Road, because there was no address on DAFT. He said he liked the house, but when asked about the rent the Appellant Tenant asked him if he had work in Dublin. When he said he had not the tenant told him he could not live in the dwelling, but then she raised with him the question of working with a company called Forever Living. When he agreed to be an employee of that company the Appellant Tenant told him he would be accepted as a tenant. Mr Notari said he had never worked at any time for that company despite having become an employee, but that Ms Medeiros had provided him with a reference once he became an employee. He said he started living in the dwelling from 8 February, 2015, and that a number of other people whom he mentioned by first name also lived there at that time. He said he had no problem with the Appellant Tenant at the start and that he participated in the required cleaning of the house, studied and looked for a job every day.
Mr. Notari said that the Appellant Tenant slept in the living room which he could not understand, and that she came upstairs every day and entered his room and the other bedrooms upstairs. He said that the tenant used one freezer for herself and the other one in the dwelling had to be shared by the other 5 occupants in the dwelling.
Mr. Notari said that there were arguments every day between the Appellant Tenant and another person in the house. He said that on the morning of 26 April, 2015 the Appellant Tenant put that person’s baggage in the garden, and the person came back later that day with two Gardai. He said that after this incident he thought there were seven persons in the dwelling. He also said that he started to look for new accommodation and told the Appellant Tenant that he had no peace in the house and did not intend to live there any longer. He added that he had lived in the house for 3 months and paid €365 to the Appellant Tenant for each of those months, €300 for rent, and €65 towards utility bills and cleaning materials. He also said that before he left he asked for his deposit back but the Appellant Tenant had refused to give it to him because he had not found a replacement tenant. He also said that on some occasions the Appellant Tenant had asked him to leave the dwelling because the landlords’ agent was due to call and he was not to return until after 6.00 p.m. until advised by text.
In response to questions from the Appellant Tenant, Mr. Notari said that everything in a typed statement that had been submitted to the Tribunal prior to the hearing, relating to the time he lived in the dwelling, was a lie. He said that the Appellant Tenant had written the document, but he had refused to sign it. The tenant confirmed to the Tribunal that she typed the document and that she had helped Mr. Notari to write it because she said he had bad English. She said that she helped Mr. Notari to put the statement together, showed it to him and then made amendments Mr. Notari requested after he read the document. She added that Mr. Notari said he would only sign the document if he got his deposit back, as he had requested. She said that she did not give the deposit back because Mr. Notari did not give her any notice, but decided to move out overnight, and broke a fixed term lease without finding a replacement. She added that allowing people to depart like that without notice would create difficulties for her in paying the rent. She said that after Mr. Notari left there were five people in the house including herself. Mr. Notari contradicted this and said that there would in fact have been seven people there. Asked by the Tribunal if she would still be taking in enough money to pay the rent from other people living in the house even if one left without notice the Appellant Tenant said that when people give notice she looks for somebody to take their place, but the replacement does not move in until the other person moves out.
Mr. Notari said he spoke to the Appellant Tenant in the first week of April, 2015 and told her of his intention to leave by the 8 May, 2015. He said that the Appellant Tenant said OK but that he needed to help her to find a replacement. He also said that he left on 29 April, 2015.
In relation to his statement that had been presented to the Tribunal Mr. Notari said that he had not read it and was unaware of what was in it. Responding to questions from the Appellant Tenant Mr. Notari said that the document had only been given to him on the morning of the Tribunal hearing. He denied that he had a copy of it apart from the one that had been given to him that morning. The tenant then referred to some exchanges of messages between her and Mr. Notari in the matter on ‘Whatsapp’. It was pointed out to her by the Tribunal that these were in Portuguese and could not therefore be understood by the Tribunal. The Appellant Tenant said that in the messages she asked Mr. Notari for the document and he replied that he would bring it over to her later.
In response to further questions from the Appellant Tenant Mr. Notari said that he had given his keys to Gardai on the day they came to the house with a person who had been living in the dwelling, named Rebecca; that he had not seen Rebecca attempting to get into the dwelling before that; that he had given verbal notice in early April and that his rent was paid up to 8 May, 2015; he said he had no receipt for a payment made on 8 April, 2015 because the Appellant Tenant never gave him one. The Appellant Tenant said that she was disputing that the tenant gave her notice on 8 April. Mr. Notari confirmed that he still has the keys of the dwelling because the Appellant Tenant has his deposit. He also re-asserted that he had not written the statement in his name before the Tribunal.
Second day of hearing, 3 July, 2015
At the outset of the second day of the hearing, the Tribunal noted that the Appellant Tenant had submitted translations of a number of ‘Whatsapp’ messages that were in Portuguese when submitted previously. The Appellant Tenant confirmed that she had translated the messages. The Tribunal stated that to the extent that it may be necessary for the Tribunal to consider these messages, the Tribunal would be taking into account the fact that the messages had not been independently translated.
The Tribunal also noted that in an e-mail to the PRTB since the previous day of hearing, the Appellant Tenant had raised a number of issues in relation to the evidence given on that day by Ms. Aoife Corcoran, a neighbour of the Appellant Tenant. The Tribunal pointed out that Ms. Corcoran had already given her evidence at the hearing on 8 June 2015, had been cross-examined by the Appellant Tenant and had been excused by the Tribunal from further attendance at the Tribunal hearing. In those circumstances, the Tribunal advised the Appellant Tenant that it was disregarding the further submissions she had made in relation to Ms. Corcoran’s evidence.
The Chairperson also advised the Respondent Landlord’s agent that no additional video evidence could be submitted on the day of the hearing.
Evidence and Cross-examination of Garda Kieran Campbell
Garda Campbell told the Tribunal that he was stationed at Cabra Garda Station. He said that on 6 December, 2014 he was accompanied by Garda Davide Laird when they received a call to attend at 48 Villa Park Gardens where it was alleged a woman was being attacked. He said that when they arrived they were met by the Appellant Tenant who alleged that a resident named Jordi had kicked in the kitchen door and tried to attack her. He said that the Gardai went upstairs to speak to Jordi, who was Spanish and aged about 19. He said that Jordi told them that when he got home from work, he tried to make his dinner, that he put his dinner in the microwave, went upstairs to retrieve a phone charger and when he came down the Appellant Tenant had locked the kitchen door. Garda Campbell said that Jordi told them that when the tenant refused to open the door he had forced the door open and that was when the tenant called the Gardai.
The Appellant Tenant had denied to the Gardai that this was what happened, at which point the Gardai attempted to establish who owned the dwelling. He said that the Appellant Tenant told the Gardai that she was the landlord, but did not own the property. She gave them the name Michael as the owner, but said that she did not know the owner’s surname. Garda Campbell also said that the tenant was quite anxious to get Jordi arrested, but they explained to her that he had a right to stay in the dwelling as a tenant. He added that they had to establish the ownership of the dwelling to see if the owner wished to make a complaint of criminal damage. He said that he was eventually given an e-mail address for Ms. Joan Hanrahan and established that the latter did not wish to proceed with any such complaint.
Garda Campbell also said that Jordi made several allegations about the heating in the dwelling. He outlined efforts he and Garda Laird made to resolve the issues in this regard. He said that he also went to the dwelling the following day and explained to the tenant that the Gardai could not take any further action, in the absence of a complaint from the owner of the dwelling.
Garda Campbell stated that on Sunday 26 April, 2015 he was on duty at Cabra Garda Station when a lady he noted to be another occupant of the dwelling, Ms RJ, approached the counter in an extremely upset state. Ms. RJ explained that, having left 48 Villa Park Gardens early that morning to go to church, she had been locked out, with all of her property still in the dwelling. Garda Campbell said that he explained to Ms. RJ that the Gardai could not get involved in civil disputes of this nature, but that they would be prepared to attend at the dwelling with her to ensure that there was no breach of the peace. He said that he and Garda Laird went to the dwelling in the squad car with Ms RJ.
On arrival he said they were met by Mr. Notari and Mr. Maia, and that one of those gentlemen gave a key to the dwelling to Ms. RJ. He said that the Gardai went into the dwelling and explained to the Appellant Tenant their reason for being there. He added that the Appellant Tenant told them she had taken Ms. RJ’s property from her bedroom and brought it over to Ms. RJ’s mother’s house. On hearing this he said that it seemed to him that there was a possibility a burglary had occurred, in circumstances where Ms. RJ was renting a room within the property and that he asked the Appellant Tenant questions in relation to that possibility, in circumstances where she did not have permission to move Ms. RJ’s property. He said that the Appellant Tenant was co-operative under questioning and explained that Ms. RJ had signed an agreement under which she, the Appellant Tenant could evict other tenants with a certain amount of notice. Ms. RJ told him that she had been given such notice, but had not found anywhere else to live. Garda Campbell said that the Appellant Tenant produced documentation, but was unable to show him where in that documentation there was an entitlement for her to move another person’s property. He said that when he asked the tenant if she was entitled to sub-let she said that she was so entitled, once she informed the letting agent she was bringing someone into the dwelling.
Garda Campbell said that the tenant confirmed to him that she had informed the agent about Ms. RJ and showed him an e-mail to that effect on her laptop. He said that he also saw a reply underneath from the landlord’s agent in red print stating that the tenant was not allowed to sub-let the dwelling. He said he explained to the tenant and Ms. RJ that the Gardai were not in a position to intervene in terms of who had a right to stay in the dwelling or otherwise. He said that he had advised Ms. RJ that because of the hostile nature of what had happened she should look for alternative accommodation. He said the Gardai then left, that he had subsequently attempted to contact Ms. RJ, but she had been un-contactable.
In response to questions from the Appellant Tenant, Garda Campbell stated that it was 9.30 p.m. approximately when the Gardai went to the house on 6 December, 2014. He said that he had gotten the impression that the tenant had wanted Jordi arrested because that was what she had said to the Gardai several times. He also said that when he came to the dwelling with Ms RJ he could not remember if she had shoes on, but that she had been holding shoes in her hand. He re-iterated that although it was a civil matter the Gardai had gone to the dwelling to ensure there was no breach of the peace. He repeated that when Ms. RJ told him that the tenant did not have permission to go into Ms. RJ’s room he came to the belief that the removal of Ms. RJ’s property was a matter that required further investigation.
Asked by the tenant about the documentation he had seen, Garda Campbell said this included a one page document which he believed was possibly a tenancy agreement, which basically outlined the date Ms. RJ was moving in and some other information he was unsure of. He confirmed that the tenant had also shown him the house rules, and that the tenant explained to him which one of those she alleged Ms. RJ had broken. He also confirmed that the tenant had shown him a handwritten copy of an agreement dated 15 December, 2014 that had been mediated by the PRTB and several other documents.
In response to other questions Garda Campbell said that he had never got a message that Ms. RJ was attacking the Appellant Tenant with a knife. He said that the following day the tenant had called to the station and wanted him to take a statement. He said he couldn’t do this, because Ms. RJ had already made a complaint to him in relation to the alleged burglary. The Garda also denied that the tenant had told him that she was sharing the room upstairs with Ms. RJ, but he agreed that she had possibly told him that she was using the living room downstairs as a temporary bedroom because of her illness. Garda Campbell also described again what had occurred when he called to the dwelling in relation to the emergency call about Jordi. He agreed that when he asked for the landlord’s contact details the tenant had told him her phone was broken. He added that the tenant had shown him a phone, but there was no contact in the phone named Michael. He agreed also that the tenant had given him Ms. Hanrahan’s e-mail address. He also said that the landlord or his agent did not accompany the Gardai on the day they called to the dwelling with Ms. RJ.
Evidence and Cross-examination of Garda Davide Laird
Garda Laird said that on the two occasions they went to the dwelling he had been with Garda Campbell and he just wanted to add a few points. In relation to the first call out on 6 December, 2014 which was responded to as an emergency as the tenant had reported she was being attacked, things were basically quiet when the two Gardai arrived at the dwelling. He said that when they spoke to him, it did not appear as if Jordi had been involved in a confrontation. He outlined how he had re-installed a heating control in the room occupied by Jordi which in his view was not broken or damaged, even though the Appellant Tenant had told the Gardai that the tenant had broken this. He said that he had simply plugged the control back in and it was working fine. Garda Laird also said that Cabra Garda Station was about 5 to 10 minutes from 48 Villa Park Gardens, and when Ms. Johnson arrived there on 26 April she had no shoes on, but was carrying these with her. Garda Laird also said that after he got back to the station on that date, he got a call from the Appellant Tenant stating that Ms. RJ was attacking her with a knife. He confirmed that the tenant was not still under attack and suggested that she call to the station the following evening if she wished to make a statement. He said that when he met the tenant the following evening she wanted Garda Campbell rather than him to take her statement. He said that when this proved not to be possible the Appellant Tenant left the station.
In response to questions from the Appellant Tenant Garda Laird described how her shoes had been returned to Ms. RJ after he discovered they had accidentally been left behind in the patrol car. He also said that he had never been in the dwelling other than on the two occasions when he accompanied Garda Campbell.
Evidence and Cross-examination of Garda Eoin O’Doherty
Garda O’Doherty said that he attended at 48 Villa Park Gardens on two occasions. The first of these had been on 11 December, 2014 when he said there had been a call from the Appellant Tenant stating that there were intruders at the dwelling, which he interpreted as meaning that there was a burglary in progress. He said that when he and another Garda arrived at around 10 p.m. he observed a ladder running from the ground up to the first floor bedroom and that there was a mattress in the driveway. He said that he and his colleague met the tenant in the hallway and then made their way upstairs believing that there were intruders in the dwelling. He said that he met with a male and female by the names of Ausra and Jordi and that Ausra was crying, pacing the room and was in what could only be described as a hysterical state. Jordi was calmer but was clearly upset. He said that the two young people informed him that they were tenants in the dwelling, that they were due to move out and that the Appellant Tenant was refusing point blank to return their deposits. He said that the landlord’s agent, Mr. McGann arrived on the scene shortly after that and informed him that the Appellant Tenant under the terms of her lease was not entitled to sublet any part of the dwelling.
Garda O’Doherty said that having established that there were no burglars in the dwelling he spoke with Ausra and Jordi who informed him that when they returned after leaving the dwelling earlier that day the lock had been changed, their keys would not work and that they had to damage the lock to gain entry. He said that he also observed a notice on the front door directed at Jordi and Ausra stating that they no longer lived in the dwelling and that they were not to return.
Garda O’Doherty said that everyone then went downstairs and he quizzed the Appellant Tenant as to reasons the other two tenants were not getting their deposits back. He said that the Appellant Tenant refused to give a reasonable explanation for this at first and then conceded that the other two were not getting their deposits because of the damage done to the door earlier in the day. When the landlord’s agent Mr. McGann said that he would not hold the Appellant Tenant responsible for this damage, she then said that she was not giving the deposit back because there were bills outstanding. Garda O’Doherty said that Mr. McGann had agreed that that the Landlord would not hold the Appellant Tenant responsible for the 4 or 5 days of utility bills which were outstanding. He said that the Appellant Tenant then came up with another reason for not giving back the deposits i.e. that she had no money on her. Garda O’Doherty then said he suggested that the Appellant Tenant obtain money from a local ATM and he described in some detail how arrangements were made for the tenant to get money from two local ATMs, following which she returned to the dwelling in the Garda patrol car. He said that she then returned their deposits to Ausra and Jordi, minus 4 or 5 days utility bills and that both were happy with this. He said that he and his colleague then took Jordi to a hostel in Gardiner Street and that the landlord’s agent assisted in taking Ausra to a friend’s house.
In response to a query from the Tribunal Chairperson, Garda O’Doherty said that he acted as a mediator between the Appellant Tenant and the other two tenants on the basis that the latter were two young people who were effectively homeless in a foreign city, with no money. He said that he would not have been happy just to tell the two young people to go to the PRTB the following morning to have a civil matter taken care of.
Garda O’Doherty said that the second occasion he attended at the dwelling was at 17.53 on 26 April, 2015 in response to a complaint call from the Appellant Tenant reporting criminal damage. On arrival he met a female outside on the footpath who turned out to be Ms RJ. He said that Ms. RJ told them about the incident earlier in the day when other Gardai had been called to the scene, after Ms. RJ found herself locked out. He said that Ms. RJ told him that matters had been resolved to some extent, that she had got her deposit back, but had forgotten to take the key to her parents’ house off the key ring when she had returned the keys to the dwelling to the Appellant Tenant. Garda O’Doherty said that he then went to the door, could see the Appellant Tenant through the lower living room window but she refused to come to the door. He said that she continued to refuse to do so, even after he rang the control centre which had taken the emergency 999 call from the Appellant Tenant. He added that the Gardai then advised Ms. RJ to leave the area, and said that the Gardai called back on a number of occasions subsequently in relation to Ms. RJ’s key, but that again there was no response from the Appellant Tenant.
In response to questions from the Appellant Tenant, Garda O’Doherty said that he could not recall if Ms. RJ had told him the time at which she gave back the keys to the Appellant; he said that the Appellant Tenant made the emergency call to Gardai on 11 December, 2014 in relation to intruders at the dwelling; he said that on that occasion he arrived at 10 p.m. and was at the dwelling for about an hour and a half; he could not recall if the tenant had told him that the landlords’ agent, Mr. McGann, was not supposed to be at the dwelling without her knowledge or agreement; he said that the monies to be given back to Ausra and Jordi had been agreed in the course of a group discussion; he said that when both those persons left the dwelling each of them had two rucksack style bags; he said he had no knowledge of any call in relation to anyone interfering with the Appellant Tenant’s car; he said that on that date he had followed the tenant, and a friend who was driving her, in his patrol car to assist her in finding an ATM, he had advised the tenant not to drive her own car because there was no documentation displayed on the windscreen; he said he had no recollection of Ausra discussing the tenant’s car tax, insurance or NCT details with him; he said he could not recall the tenant’s saying she would have to carry out an assessment of all damage that had been done before giving their deposits back to Ausra and Jordi; he also said that he had not heard the landlord’s agent, Mr. McGann, offering to make arrangements for alternative accommodation for Ausra and Jordi.
Resumption of Appellant Tenant’s direct evidence
On resuming her direct evidence the Appellant Tenant requested that the PRTB adjudicator/mediator who brokered a mediation agreement between her and the Respondent Landlords be brought in to the Tribunal as a witness. She was advised that this would not be possible. Her attention was also drawn to the statutory confidentiality provisions under which mediation is conducted.
The Appellant Tenant referred to the alleged failure to allow her to enjoy peaceful occupation of the dwelling, because of the amount of time the first-named landlord or his agent spent at the dwelling. She also suggested that bringing Gardai to the hearing made her feel like she was being judged and condemned. She also referred to documentation that had been supplied to her shortly before a previous mediation appointment. It was pointed out to her that there was no need for her to refer to what had happened in the context of that mediation nor was it appropriate for her to do so.
In relation to the alleged failure to allow her to enjoy peaceful occupation of the dwelling, the tenant further suggested that the Landlords’ agent somehow set people she brought into the house against her when she sent the documentation for those people to the agent. She gave details of the documentation she supplied to occupants entering the dwelling, including a one page document entitled ‘Terms and Conditions’ which she required other occupants moving in to the dwelling to sign. She suggested that those occupants were subject to the same conditions to which she was subject under her agreement with the landlords, including a requirement to give her one month’s notice if an occupant wished to move out. She also maintained that when she gave other occupants a copy of the specimen rental agreement between her and the landlords she told those occupants that the copy she was supplying was not the same as the document she had signed. She submitted that while she was the head tenant under her rental agreement with the landlords, she was entitled to set down and amend her own rules under separate agreements she was entering into with other occupants.
The tenant also re-iterated that she had requested a copy of the agreement she had signed, but that these requests had always been verbal; she had no record of any such request by her in writing or by e-mail. She said that the Gardai, following calls from her, came to the dwelling almost every day between 6th and 11th December, 2014. She said that around 4 of the persons living in the dwelling were involved in disputes about deposits where the Gardai were called. She said she believed that on one of those occasions Jordi and Ausra were causing breakages in the house on the instructions of the landlords’ agent. She also suggested that the agents had instructed many of the occupants to do many things. She submitted that these events connected the Gardai, the agents and the landlords.
Cross-examination of the Appellant Tenant
In response to questions from the Landlords’ agent Mr. McGann, the Appellant Tenant confirmed that she did translations from English to Brazilian (Portuguese) at the dwelling and that she was also employed by the Courts and others to interpret Portuguese.
In response to a question about whether she had written permission from the landlords allowing her to sublet the dwelling, the Appellant Tenant again said that in the lease that she signed paragraph 3.12 was crossed out and the agent put ‘not applicable’ by hand on the signed agreement. She said that paragraph 3.14 was also altered in the copy she signed, giving her permission to use one of the big bedrooms as an office
Citing the statutory requirement that parties must answer questions put to them by the Tribunal, the Chairperson twice asked the Appellant Tenant if she ever at any time got written permission from the landlords to sublet or assign the dwelling. She replied that she interpreted the agreement she had signed as giving her such written permission. In response to further questions from the Tribunal about the e-mails and discussions between her and the agent for the Respondent Landlords before the tenancy commenced, the tenant said that she thought that when she asked by e-mail to be released from paragraph 3.14 of the draft lease, this covered paragraph 3.12 as well. She added that she did not see much difference between paying guests, tenants and sub-tenants. She also emphasised again however, that she had sought the removal of paragraph 3.12 a number of times. She said that she was completely comfortable that she could bring people in to share the dwelling with her. Asked again why she had sought by e-mail to have paragraph 3.14 amended, but had never done so in relation to paragraph 3.12, the Appellant Tenant said that she had been satisfied that the agent would remove paragraph 3.12, but that she needed to see the proposed revised wording of paragraph 3.14.
In response to further questions from the agent for the Landlords, the Appellant Tenant said on the agent’s inspection of the dwelling on 20 August, 2014, she had not asked all the tenants to vacate the dwelling with all of their belongings, to show that the 3 bedrooms upstairs were vacant. She said it was not true that on that date there were 3 fridges and 3 freezers full of food in the dwelling. She maintained that two of the freezers and one fridge were completely empty, that another fridge had some food in it and another one some drinks. She said that there were two fridges and two freezers in the dwelling on the day she moved in, and that she had brought the additional fridge and freezer to the dwelling. She also said that there was one cooker in the dwelling when she moved in and that she brought another one with her.
In response to questions from the Chairperson the Appellant Tenant said on the day she got the keys to the dwelling that there were 4 single beds and 1 double bed in the dwelling and that the latter had been removed to the garage for later collection by the first-named Respondent Landlord. She agreed that there are now 9 beds in the dwelling, plus the double bed that remains in the garage. The 9 beds include two sets of bunk beds. She also said that it had not been her wish to have that number of beds in the dwelling and that she had discussed the possibility with the landlords’ agent of having other beds removed, particularly if people coming to share had their own beds.
In response to further questions from the Landlords’ agent, the Appellant Tenant said that she could not recall the exact number of subtenants who had lived at the dwelling since she took up occupancy. She also said that when the front door lock was broken originally she understood from what the Landlords’ agent had said to her that she had permission to have the lock replaced and made arrangements to do so. She added that the locks had been changed on two occasions and that she had never got written permission for this.
The Appellant Tenant in response to another question said that she did not know if she had accumulated any money as a result of what she was charging other occupants of the dwelling, but that it was wrong to say that she was collecting €1750 per month, which was more than her rent. She also denied that she was running a Brazilian cookery school out of the dwelling, but added that if people coming to share with her can’t cook she would always offer to teach them.
In response to questions from the second-named Respondent Landlord, the Appellant Tenant stated that on her first visit to the dwelling she had confirmed to the Landlords’ agent that it was just a green suite of furniture she wanted taken out of the dwelling, because of the difficulties she would have with the stairs on her return from hospital. She agreed that she also selected a bed to be removed and replaced with her own bed. She did not agree that it was only one bed she asked to have removed, but was unable to specify what other furniture if any she had asked to have removed. In relation to a fridge that had been removed to the garage on its being replaced by an upright fridge freezer, she said that when the first-named Respondent Landlord was about to take this away she asked him to leave it, but could not remember the reason why she did so.
In response to a repeated question from the second-named Respondent Landlord and the Tribunal Chairperson, the Appellant Tenant agreed that the Landlords’ agent had never said to her that there was no limit on the number of people that the tenant could bring to the dwelling. She also said that on the day she paid the deposit on the dwelling, the agent specifically told her that she could advertise the dwelling. She said she was told this verbally but was unsure if she had it in writing.
The hearing was adjourned until 10.30 a.m. on 9 July, 2015. The Chairperson said that at the start of the resumed hearing the Tribunal would give a ruling on the admissibility of certain video evidence, which the Appellant Tenant admitted she had secretly filmed on her telephone.
Third day of hearing, 9 July, 2015
Opening the resumed hearing the Chairperson said that it was the Tribunal’s view that the central issues in the dispute before the Tribunal are:
• Whether there has been any breach of the landlords’ obligations under the Act.
• Whether there has been any breach of the tenant’s obligations under the Act.
• The terms of the letting agreement between the landlords and the tenant
• Whether there has been any breach of the terms of the letting agreement
• The right of the landlords to serve the notice of termination served on the tenant.
• Whether that notice is a valid notice of termination.
The Chairperson suggested to the parties that they focus on these issues in their submissions.
The Chairperson also said that based on the evidence already given at the Tribunal and references in the documentation relating to the dispute, the Tribunal had compiled a list of named persons who may have occupied the dwelling at one time or another since the commencement of the tenancy. A copy of the list was provided to the Appellant Tenant and the Respondent Landlords. The Tribunal requested the Appellant Tenant to state which of the persons on the list had lived in the dwelling or was still living there; the Respondent Landlords were asked to state which names on the list had been notified to their agent as persons living in the dwelling. The Tribunal said it would give both parties time to examine the list and would return to it later in the hearing.
In relation to the admissibility of certain video evidence, the Chairperson pointed out that if the video evidence was ruled to be inadmissible, neither side could refer to it subsequently at the hearing nor could either side rely on anything that purported to have been said in the course of the video recording. The Chairperson then said that the Courts are well disposed generally to admitting video evidence if its authenticity and integrity can be vouched for, if it is original and if it has not been subsequently edited. Evidence shown to meet these conditions can be very helpful and can act as proxy for an independent eye witness account. Having said that the Chairperson noted that it was accepted that the relevant video evidence was taken by the tenant in the dwelling without the knowledge of the person being filmed at a time when the tenant had no entitlement to the occupancy of the dwelling under a tenancy. On that basis the Tribunal ruled that the relevant video evidence was not admissible as evidence.
Continuation of cross-examination of Appellant Tenant
In response to further questions from the second-named Respondent Landlord, the tenant said that she had not raised the question of deleting paragraph 3.12 from the letting agreement in an e-mail because the landlords’ agent had already agreed to that verbally. She said that she had sought written agreement on other issues that had been agreed verbally with the agent because the relevant clauses were to be amended, whereas paragraph 3.12 was applicable to her. She was happy to accept this assurance verbally, but maintained that the non-applicability of paragraph 3.12 was to be included in the list of special conditions attached to the letting agreement. She also said that Threshold did not advise her that if clause 3.12 was to be deleted from the lease she should get this in writing, but told her that she should make sure that this deletion was made. In response to a question from the Tribunal the tenant said she was sure that she had told Threshold at some stage that she intended to have others come to stay with her in the dwelling and pay her money, but she could not recall if Threshold had advised her to ensure that she had permission in writing to do this.
The Appellant Tenant also suggested that the letting agreement she had signed may have been tampered with through the replacement of pages on which written alterations had been made with other pages. In response to other questions she said that the agent had verbally agreed on the day she paid the deposit that she could advertise the dwelling. She said she could not recall the last time she had advertised the dwelling, nor did she think that the dwelling was still currently advertised. When her attention was drawn to the name of a person on a recent advertisement for the dwelling, the tenant said she did not know who that person was. She also said that she did not know when the advertisements had been placed for the dwelling, and was therefore unable to say if this was after the adjudication hearing in January which required her to vacate the dwelling within 14 days after the receipt of a determination order. She also claimed that although she advertised that the rooms to let were for one year she did not hold anybody to such a fixed term. She added that if she is required to vacate the dwelling the people she was offering rooms to for one year could come with her to her next dwelling.
Responding to further questions, the Appellant Tenant, said that she could not recall when she had notified the landlords’ agent that a Mr. TKP came to live in the dwelling, but she was adamant that she had no other paying tenant in the dwelling prior to the agent’s first inspection on 20 August, 2014. She said that anyone there before that came to help her because she had just had an operation, and that people also came to visit her and to use her internet connection. Referred to an e-mail from a Mr. VVM stating that he was living at the dwelling from 9 July, 2014 until the end of August, 2014, the tenant said that Mr. VVM was either lying or else some other person had written the e-mail. She maintained that Mr. VM was not living in the dwelling but slept there sometimes. She also said that although she moved into the dwelling in April 2014, she held on to and paid rent for her previous accommodation until November, 2014 because the dwelling was not in good shape for her to move into. She said that she had never forwarded any details relating to Mr. VM to the agent because he never lived in the dwelling and was only visiting.
Asked by the second-named Respondent Landlord if 19 sub-tenants had stayed in the dwelling up to 22 May, 2014, the Appellant Tenant said she did not think this was correct. At this point the Chairperson referred to the list of persons who may have stayed at the dwelling which had been compiled by the Tribunal and said that he would ask the Appellant Tenant in relation to each person named on the list whether that person had lived or was living at the dwelling under an arrangement whereby that person had paid the Appellant Tenant deposit and €300 per month in rent plus payments towards the cost of utilities.
In response the Appellant Tenant stated that fourteen named persons all lived at the dwelling under the foregoing arrangement. She said that the 5 other people listed were all visitors to the dwelling, did not live there but stayed overnight from time to time, while still paying rent for the previous dwelling she and they occupied. She said that there are two tenants living in the dwelling now i.e. Will and a second person named Winston, who had moved in only a few days ago. She said that she did not have Winston’s full name with her, but had forwarded his details to the landlords’ agent. She also agreed that the 15 persons established to have stayed in the dwelling, plus the five visitors who did not pay rent was a very high number for the short period since the tenancy commenced.
The Appellant Tenant said that the only tenant she had ever evicted was Ms RJ. She said she had not evicted Jordi or Ausra who she said had moved out; she claimed that she had put a notice on the door telling these two persons they were booked into a hostel, because they were attempting to return to the dwelling and had assaulted her. She also said that she had evicted Ms RJ because she was in breach of many of the house rules she had drawn up. Asked who she returned deposits to when they left, she said that deposits were returned to 4 people and for varying reasons their deposits were not returned to other persons who left the dwelling. She also said that she did not know how many times the Gardai had been called to the dwelling because of her refusal to return deposits, but that most of the time the Gardai were there because the dwelling was being broken up or she was being assaulted.
The second-named Respondent Landlord asked the tenant a number of times to refer her to any agreement in writing that she was free to select people to move into the dwelling, that the number of such people would be at her discretion and that she would be the person to deal with people who move into the dwelling. The Appellant Tenant said that agreement was reached on this matter in the mediated agreement between her and the agent for the Respondent Landlords, but was not included in the written agreement. The Appellant Tenant also said that she believed she had an agreement allowing her to accept as many paying guests into the dwelling as she chose to so do and that neither the landlords nor their agent would have any input into that. Asked if these people were her tenants or the landlords’ tenants the Appellant Tenant said that they were her housemates. However, she believed that once she notified the names to the landlords’ agent and their names were put on the lease, they would become the landlords’ tenants also. She again maintained however that the agent never said she must get prior written permission from the landlords, nor did the letting agreement she signed provide for that. She said that she was the one who had to select the other tenants because she was the one who had to live with them. She outlined difficulties she had experienced previously when she found herself living with people she did not want to live with and said that was why she had decided to pay the whole rent in the case of this tenancy. On that basis she said the agent had stipulated that if she did not provide details of persons living in the dwelling she would be in breach of her contract.
The Appellant Tenant agreed that if she selected the other persons to live in the dwelling she would be responsible for them, but only in a certain way. She explained that this meant she could not be responsible for other people’s actions if for example they committed a crime. She also agreed that the landlords did not authorise any of the other people to live in the dwelling. She accepted that the landlords’ agent had notified her by e-mail that the landlord was not authorising some of the people who had lived in the dwelling to live there. She said that she felt she was free to ignore this, because it had been agreed that she could select the people to live with her.
The Appellant Tenant said that she got no reply when she notified the landlords’ agent about Jordi and Ausra. She claimed that she had seen on the PRTB website that if the landlord does not reply when given details of a new tenant it can be taken that the landlord has authorised that new tenant. She accepted that Jordi had caused extensive damage to the dwelling on 7 November, 2014 when he broke the kitchen door. She also accepted that Jordi and Ausra caused extensive damage to the dwelling on 11 December, 2014. She said she felt responsible at the time for the damage and that was why she tried to prevent those two persons from entering the dwelling, for her own safety and that of the dwelling. She added that later on she was not prepared to take responsibility for the damage because she believed the damage was done on behalf of the landlords’ former agent, Mr. McGann, She said her evidence for that was that the agent was at the dwelling at the time without invitation to be there and she believed that he may have helped to break the front door of the garage, or that this was done on the agent’s orders. She also said that she saw Mr. McGann going through a window, but she could not explain why there was no reference to this allegation in the Garda report of the incidents on the date concerned.
In response to other questions from the second-named Respondent Landlord, the Appellant Tenant said that her requests to have maintenance people sent to the dwelling to carry out repairs constituted part of her allegations of breach of landlord obligations. She confirmed that she repeatedly stated in e-mails sent to the landlords’ agent, Ms. Davis, that maintenance personnel may not be accompanied by anyone from the letting agency. She added that she could not remember what her response had been to a number of e-mails requesting that the landlord be allowed to visit the dwelling to assess the damage. She said she did not think she had responded to any of those e-mails. When asked who she thought could authorise the necessary works, the tenant maintained the landlords’ former agent had assessed all of the work that needed to be done when he was at the dwelling in 11 December, 2014. She claimed that Mr. McGann then told her he would be sending maintenance personnel to repair the damage the following morning. Asked how an estate agent could carry out a full assessment and advise the landlords on the works to be undertaken and the costs without carrying out a full assessment of the damage, the tenant said she did not know who Mr. McGann needed to advise, but that he had taken full responsibility for everything.
Asked about a statement she had made in an e-mail to the PRTB that “it is clear that all evidences that the landlord and agent have submitted are false and manipulated by them”, the Appellant Tenant said that in making that statement she was referring to Ms RJ, because she had been in contact with the agent and the landlord and had been acting on behalf of the landlords’ agent in her actions at the dwelling. She alleged that the landlords and their agents had contacted tenants, then the tenants would make a lot of trouble and the agents knew about this through their contact with the tenants. She suggested that in contacting her tenants the agents were acting on behalf of the landlords and this reflected on the landlords. She believed that the agent had obtained her tenants’ contact details by going to the front of the dwelling and talking to people as they entered or left the dwelling. She said she herself never thought it was necessary to send the contact details of the occupants of the dwelling to the landlord, even if their names were to be added to the lease as tenants of the dwelling.
The Appellant Tenant agreed that neither the landlords nor their agent had ever approved anyone to live in the dwelling; when it was put to the tenant that she was in arrears of rent amounting to €2,841 the tenant said she was not sure about this; she also said that the landlords’ agent had agreed to take care of a large ESB bill and eventually did so.
Referring to her statement at the previous hearing that she had restored the original lock to the front door of the dwelling the second-named Respondent Landlord asked the tenant if she could go to the dwelling over the lunch-time break in the hearing, accompanied by the tenant, to see if the original key in the landlords’ possession worked in the lock. The tenant said she could not agree to this because she was concerned about security; she said on the first day she changed the lock she did not change it without permission, because the landlords’ former agent was present; she said that the second time she changed the lock she notified the landlords as soon as she could, which was at the Tribunal hearing, but not before that. The tenant admitted that when there were up to seven tenants staying with her in the dwelling she was collecting €2,555 per month from them at a time when her rent remittance to the landlords was €1,400 per month, but added that sometimes the tenants did not pay the rent; she re-iterated also that she had evicted one tenant from the dwelling, Ms RJ.
Evidence of Anthony McGann, former agent for the Respondent Landlords
Mr. McGann said that he had acted as agent for the Respondent Landlords from about March, 2008 until he left the agency employing him in December, 2014, and that there had been other tenants in the dwelling prior to the Appellant Tenant. He said he met the Appellant Tenant in March, 2014 when she came to view the dwelling. He said that at that time the tenant gave him two references, one of which he alleged was falsified. He said that one of the agency’s requirements was a reference from the immediately preceding landlord but unfortunately he was not provided with that by the Appellant Tenant. He said the reference he did receive checked out, but this was from an earlier tenancy.
Mr. McGann said that it was the agency’s policy to have everything in writing, so that when the tenant queried some items on the lease he asked her to send those to him in an e-mail, to enable him to address them and respond to her, also by e-mail. He said this was done and referred the Tribunal to the e-mails in the matter on the PRTB case file.
Mr. McGann also said that during the viewing the Appellant Tenant stated that she would like to turn one of the bedrooms upstairs into a home office; she also suggested having another tenant in the dwelling, who would be someone like herself, because she did not want young people. Mr. McGann told her that would be fine but that she would need to put this in writing before he put it to the Respondent Landlords. He said it was very clear that the Appellant Tenant was talking about one other tenant.
Mr. McGann said that after he returned to his office he got an e-mail from the tenant raising five points which he had addressed. He added that the agency uses a software system for producing lease agreements called Letman. The system produces leases in pdf format which cannot be physically altered, except to allow him to put in special terms and conditions. Asked if he could amend the printed document by putting a line through a provision, Mr. McGann said that the code of practice in the agency was that the only place in which additions or amendments could be made to a lease agreement was in the special terms and conditions. He said that if there was a special term or condition which changed the meaning or contravened one of the existing clauses, that clause would not be struck out. Instead, the change would be noted in the special terms and conditions; an example would be if both parties had agreed in writing that a tenant could sublet or rent out other rooms etc. He confirmed that the clause concerned would remain in the body of the lease in such circumstances.
Mr. McGann said that the special conditions that had been included in the letting agreement at the tenant’s request were:
• That she had permission to use one of the bedrooms as an office
• That the tenant could keep a cat in the dwelling, but if the cat caused any damage, the cost would be deducted from the tenant’s deposit
• That a gas cooker and bottle to which his attention had been drawn by the tenant was not permitted in the dwelling
Mr. McGann added that two other special conditions had been added to the effect that smoking was not permitted in the dwelling and that the tenant must provide her own TV licence, because he put these in every lease agreement.
Mr. McGann said that the tenant then came into his office and signed 3 copies of the lease, two of which were forwarded to the landlords for signature and one of which was retained by the agency. He said that this procedure was the agent’s standard practice, adding that it was not the case that the tenant had, as she stated, signed five leases and initialled each page of every copy of the agreement. He added that if amendments were required to a lease e.g. if the rental as printed was incorrect, he would amend this by hand, initial it and ask the tenant to initial it as well. He also said that the tenant did not put the letters N/A beside paragraph 3.12 of the lease before she signed it. He said that even if it had been agreed with the tenant that clause 3.12 did not apply, what would have happened is that he would have gone back to the Letman programme, amended the special letting conditions to show the additional change agreed and reprinted the copies of the lease for signature.
Mr. McGann confirmed that after the landlords signed and returned the lease it was posted out to the tenant at the address of the dwelling with a complimentary slip. In response to a question from the Tribunal, Mr. McGann denied that either he or anyone else in his office could have or did alter the lease by substituting all of the pages on which various changes had been made and initialled, with the pages currently in the lease – leaving only the back page as signed the tenant and the landlords.
Mr. McGann said that before the tenant moved in the landlords had spent a large sum on re-vamping the dwelling, but there were still a small number of snags to be attended to; these were addressed and all seemed to be fine with the tenancy initially. He said that in early August, 2014, the second-named Respondent Landlord contacted him to say that she had received a call from a neighbour to the effect that there were a lot of people going in and out of the dwelling. The landlord asked him to investigate and he made an appointment to do an inspection at the dwelling on 20 August, 2014. He said that on that date there was nobody else in the dwelling and he did a walk through with the tenant and everything seemed to be fine. However, he said his suspicions grew when he found that two fridge freezers, an under counter fridge and a freezer in the garage were all full of food. He then opened five kitchen presses which were all full of the same types of food, such as bread, crackers, cereal and canned goods. He felt that all of this was a lot of food for one person.
Mr. McGann said that when he and the tenant went upstairs there were one or two bags in the bottom of the wardrobes in the two larger bedrooms, but there was nothing to suggest that anyone was living in those rooms. However, in the third room that was to have been used as an office, he found a double bed and a wardrobe full of men’s clothes. Mr. McGann said that he then told the tenant why he was inspecting the dwelling; in response the tenant said she was living in the dwelling on her own, and that any reports from neighbours to the contrary should be discounted. He said that given what he had seen he came to the conclusion, after the returned to his office, despite the tenant’s denials, that there were other people living in the dwelling.
Mr. McGann said that on one evening of the following week he drove over to the dwelling at around 5.15 p.m. and parked between 75 and 100 metres away and out of sight of the dwelling to see if there was any activity there. By standing on the sill of his car door to see over a hedge around the dwelling, he saw four people using keys to enter the dwelling and rang the second-named Respondent Landlord to inform her.
Mr. McGann said that on 3 September, 2014 the tenant, with the agreement of the landlord was issued with a notice to quit because she was in breach of her lease obligations. Giving the tenant a week’s notice of his intention to do so the agent said he called to the dwelling and gave the notice of termination to the tenant. He said that the tenant subsequently went to Threshold and came back to him to say that the notice was invalid.
Mr. McGann said that in October, 2014 matters escalated one night when he got four missed calls from a tenant named Ausra. He arranged to meet Ausra in a nearby supermarket car park because she did not want to meet him at the dwelling. When he met her he said Ausra was apprehensive, told him that there were household rules which required everyone in the dwelling to hide when the doorbell rang, and that the Appellant Tenant had refused to give her the landlord’s contact details. He added that Ausra had found his business card in the dwelling. He also said that Ausra told him that a lot of non-nationals had been coming to the dwelling as a result of an advertisement for a room to let on Daft.ie. Ausra told him that the Appellant Tenant would sign them up to the company ‘Forever Living’, entitling them to a landlord reference. The Appellant Tenant would then take a deposit of €350 from those people and a month’s rent in advance of €365, to include additional items. The agent said that this information about the ‘Forever Living’ scheme led him to conclude that, contrary to the letting agreement, the tenant was running a business from the dwelling, which could affect the landlords because they had no public liability insurance. Because of this he said it was decided on 19 November,2014 in consultation with the landlords, to again issue notice of termination.
Mr. McGann said that he delivered the new notice of termination personally to the tenant. He said that on the following day he got a call from Threshold to say that the tenant had been in with them. The representative from Threshold pointed out to him that the notice he had issued was deficient in 3 respects. He said he then redid the notice and served it on the tenant on 21 November, 2014. The notice was due to expire on 19 December, 2014 but the tenant had lodged a case with the PRTB in the meantime.
In response to questions from the Chairperson the agent agreed that the tenancy was a Part 4 tenancy and the notice of termination had been issued pursuant to section 34 of the Act. In serving the notice the agent said that the landlords were relying on paragraph 1 of the Table to section 34 i.e. the tenant’s alleged failure to comply with her obligations under the tenancy. He said that from 3 September, 2014 onwards the tenant had been notified of that alleged failure and had been advised that the landlords were entitled to terminate the tenancy if the failure was not remedied within a reasonable time. He said he had asked the tenant on a number of occasions to stop bringing people in and to stop running a business, trade or profession as per her lease agreement. He added that on 11 November, 2014 he had inspected the dwelling again and found that the set-up was similar to what he had seen on his previous inspection. He also said that when he had called to the dwelling on 21 November to serve the notice of termination the tenant refused to open the door, but he could see her through a window and she appeared to him to be telling other occupants to hide; he said lights were being turned off also and then the tenant went upstairs and started to film him from the top bedroom. He then put the notice of termination in the letter box and photographed it on the porch floor.
Mr. McGann said that over the following week or so he was contacted by four different occupants of the dwelling who told him of their concerns about how difficult living at the dwelling was for those occupants. He also said that he had seen a Facebook page warning members of the Brazilian community in Dublin not to rent property from the Appellant Tenant. He added that he had asked one of the occupants who had contacted him, a Mr. F. O’R, to give evidence in the case the landlord was preparing for the PRTB, but that Mr O’R had left the dwelling suddenly and he never heard from him again.
Mr. McGann said that on 6 December, 2014 he got a call from two of the occupants Jordi and Ausra), he went over to the dwelling, met them and advised them to put what was happening down to a bad experience and seek alternative accommodation. He said he met the same two persons at the dwelling on 11 December, 2014 and gave them the same advice. Later that night he got a call from the Gardaí, telling him that there appeared to be two persons attempting to break into the dwelling. He went over and on arrival he could see a ladder up against the garage, the garage door was open and there was a mattress outside on the ground. He said that at no time did he damage the dwelling nor did he seek to gain entry through a window. He went in through the front door and went upstairs and spoke to Ausra who was distraught over not getting her deposit back. He said that after a lot of heated argument it was agreed that the tenant would go to an ATM machine for money to give €270 each back to Ausra and Jordi i.e. their deposits less a sum to cover ESB and other utilities. Mr. McGann also said that while at the dwelling that night he noticed a lot of damage to the garage door, the back door, the kitchen door, and that a control panel for turning the heating system on and off was missing.
Mr. McGann said that this was the last time he had any dealings with the tenant, as he left the agency shortly afterwards. He said that the Appellant Tenant had never given him the required details in relation to any of the persons on the list furnished by the Tribunal to both parties. He had found out about four of those occupants through their contacting him directly.
Cross-examination of Mr. Anthony McGann, Respondent Landlords’ former agent.
In response to questions from the Appellant Tenant Mr. McGann stated that when he went to the dwelling on 11 December, 2014 he was on sick leave from the agency, but was well enough to go there when he got a call from the Garda that evening. He then described again the sequence of events when he went over to the dwelling; he also again described what had happened when he went to the dwelling earlier that afternoon in response to a distressed call from Jordi. Asked why he went into the dwelling on 11 December, 2014 despite what had been agreed at mediation, Mr. McGann said that he was there at the request of the Gardaí, who had been given his name he believed by Ausra.
In relation to documentation for any current tenants living in the dwelling Mr. McGann clarified that he did receive some documentation for four tenants around 20 November, 2014, but not the full information required such as landlord reference, work reference and PPS number as had been agreed at the mediation held on 15 October, 2014.
Mr. McGann also said that he normally takes photos when he carries out an inspection and that he opened and took photos of the tenant’s fridge despite her objections. He said that Ausra was the first tenant from the dwelling he met and that he met her in early September, 2014. He then corrected this to say that his contact with the occupants started in October, when he got the four missed calls from Ausra. He also said that he had no record of the Facebook page he had seen.
In relation to his previous visit to Villa Park Gardens when he met Ausra (and Jordi in his car, their main concerns were that the Appellant Tenant was trying to evict them, that she was making life very difficult for them, did not want to return any funds to them and wanted them out of the house immediately.
Responding to other questions from the Appellant Tenant Mr. McGann said he could not recall the name of the gentleman from Threshold who had called him; that he had posted the signed lease to the tenant on 12 May, 2014; he said that the tenant paid the deposit on the dwelling on 28 March, 2014, but corrected this to say that half of the deposit had been paid on 21 March; he said that he had sent the draft lease to the tenant by e-mail on 3 April, 2014, but the tenant noted that she had in fact received the draft of the lease on 27 March, 2014.
Mr. McGann also said that it was the tenant who had asked for the small fridge to be kept in the garage; he denied that on the day he showed her the dwelling that she said she had friends who wanted to share the house with her and re-iterated that she had mentioned that she might like to share the dwelling with a mature person like herself; he also said that at the viewing he would have said to the tenant that as long as you have your landlord’s permission, and as long as you provide a utility bill, PPS number, photo identification, previous landlord reference and a work reference, there generally would not be an issue with bringing in another tenant; he said that he got the impression that the tenant already had someone in mind to share with and that the issue of advertising had never been discussed; he agreed that the tenant was reluctant to sign the lease when he met her at his office, but said he had made that arrangement as he had gone to the dwelling on two other occasions to accommodate the tenant; on the first of those she did not turn up and on the second she was 25 minutes late; he could not recall if the tenant had asked if she could have visitors to the dwelling, but said he would never disagree with a tenant having guests; he re-iterated that the tenant had never sought permission in any e-mail to sub-let the dwelling; he said that he had received no e-mail from the tenant before his inspection on 20 August, 2014 about any other tenants or about visitors she needed to help with her health; he said that during his inspection on 20 August, the tenant made no mention of a person called F O’R who was ready to move in to the dwelling.
Conclusion of Landlords’ evidence
Following the completion of Mr. McGann’s cross-examination, the Respondent Landlords – noting that they had already covered everything else they wished to say in their written submissions – informed the Tribunal that they had nothing further to add to the evidence already given to the Tribunal. The Chairperson then stated that the Tribunal would give both parties an opportunity to make a final summation.
Final Summation of Appellant Tenant
The Appellant Tenant said that what had been going on since she got the dwelling had made her life very difficult. She said that all of her troubles with other tenants had been supported by the landlords or their agent. She said she had to put up with a lot of problems at the same time and it was very difficult to cope with that, given her health situation as well. After the first inspection by the landlords’ agent, she felt he harassed her continuously with many phone calls and e-mails and this was very distressing for her. That was why after mediation the agent was not allowed to get in touch with her by telephone anymore because he was saying one thing over the phone and doing something else. The tenant said that she had asked the landlords to change their agent but they refused to do so and told her she would have to work with him.
The tenant said that she had tried to show the impact of what had happened in the tenancy on her life, her work and her health. It was not easy to see house mates you had once helped making trouble and even assaulting her. She said that the Gardaí had ganged up on her. She said that when she first met the landlords they were really nice people and she never expected to find herself in the middle of so much trouble. She again said the landlords’ agent had put her tenants up to everything that had happened. She said that she had also lost money because of the amount of time she had to spend preparing for the Tribunal. She asked the Tribunal to look at her side carefully because there are a lot of people ganging up against her and she had not done anything to deserve that in all her life. She believed she had managed the dwelling very well, and the only reason some people did not get their deposits back was because they had brought that situation on themselves guided by the landlords’ agents. She said she really liked the landlords but the abuse from the agents somehow has to stop.
Final Summation of Respondent Landlords
In relation to alleged breach of landlord obligations through their agents preventing the tenant having peaceful enjoyment of the dwelling, the second-named Respondent Landlord said that she hoped it had been established that what the tenant had described as harassment related to repeated e-mails about essential issues; she said that many of those e-mails were only repeated because the tenant refused to respond. She added that the repeated e-mails would not have been necessary in any event if the tenant had complied with her obligations under the letting agreement.
In relation to the validity of notice of termination, she said that the notice was issued on foot of breach of the terms of the tenancy agreement. She hoped it had been established that the tenant was in breach of the lease in five different ways i.e. non-payment of rent; running a business; changing the locks without the landlord’s consent; causing huge disruption in the area; and most centrally, having numerous tenants living in the dwelling without the landlords’ authorisation. She re-iterated that the landlords never gave authorisation or permission for any tenant ever to take up residence, and had in fact categorically refused permission every time an e-mail requesting permission was sent. She also suggested that the tenant had in effect admitted being in breach of clause 3.12 of the tenancy agreement. She added that it was obvious from the evidence given by the Gardaí and a neighbour that the present circumstances in the dwelling are causing a huge amount of distress, discomfort and unease amongst residents in the area. She appealed to the Tribunal to bring this unpleasant situation to an end as quickly as possible.
The Chair advised that following the hearing the Tribunal will prepare a report and make its Determination in relation the dispute and will notify the PRTB of that Determination.
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 date of the letting agreement between the landlords and the tenant was 13 April 2014
• The term of the tenancy specified in the letting agreement was 12 months
• The tenancy is on-going
• The rent is €1400 per month
• The Appellant Tenant paid a deposit of €1400
• The deposit is held by the Respondent Landlords.
Both parties accepted that they were in agreement in relation to the foregoing matters.
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence presented to it by the parties, the Tribunal’s findings and reasons therefor are set out hereunder.
Finding 1 The Appellant Tenant is the sole tenant of the dwelling; other persons who have lived or continue to live in the dwelling since the commencement of the tenancy have occupied or continue to occupy the dwelling as licensees of the Appellant Tenant.
Reasons: It was agreed between the parties that the Appellant Tenant and the Respondent Landlords entered into a tenancy agreement under which the Appellant Tenant was entitled to occupy the dwelling as a tenant under a tenancy with effect from 13 April, 2014. It is clear from the evidence that, before the tenancy commenced, discussions took place between the Appellant Tenant and the agent for the Respondent Landlords on the question of an additional tenant or additional tenants being added to the tenancy agreement. The agent for the Respondent Landlords said that these discussions centred on one additional tenant being joined in the tenancy, whereas the Appellant Tenant stated that no limit in relation to the number of additional tenants to be added was discussed.
Regardless of the number of additional tenants, if any, to be joined to the tenancy, the Appellant Tenant did not seek to exercise the option of adding further tenants to the tenancy. Instead she has, since her tenancy commenced, invited a number of persons to stay in the dwelling by arrangement with her and not with the Respondent Landlords. By virtue of the fact that these letting arrangements were made between the Appellant Tenant and the persons who were invited to live in the dwelling those persons were or are licensees of the Appellant Tenant. They were not or are not tenants the subject of a tenancy agreement between them and the Respondent Landlords.
The arrangement whereby the persons invited to stay in the dwelling paid deposits, rent and contributions to the cost of utilities to the Appellant Tenant was a personal financial arrangement between them and the Appellant Tenant. Such deposits as were paid to the Appellant Tenant are not deposits within the meaning of the Act, which is confined to deposits paid by tenants to landlords. Those deposits were not therefore protected by the statutory requirement that they be repaid promptly to the persons who paid them, subject to there being no rent arrears, outstanding utility charges or damage to the dwelling beyond normal wear and tear. Furthermore, the licensees were not bound by the tenancy obligations that applied to the Appellant Tenant, nor did they have the statutory rights that apply to tenants. The Appellant Tenant remained liable to the Respondent Landlords for payment of the agreed rent and also for any acts or omissions of the licensees which may have been in breach of her tenancy agreement.
Throughout the hearing the Appellant Tenant made a number of references to herself as being the ‘Head Tenant’ in the dwelling; various references were also made to ‘sub-tenants’ living in the dwelling. The Tribunal is satisfied however that the dwelling was not sub-let, no sub-tenancy was created nor was the tenancy assigned. Assigning or subletting a tenancy would require that a tenant no longer live in the rented accommodation themselves. That did not happen in this case. The Appellant Tenant continued and continues to share the dwelling with her licensees.
Finding 2 The Appellant Tenant is in breach of clause 3.12 of the letting agreement she entered into with the Respondent Landlords.
Reasons: The provisions of the Act of 2004 did not prevent the Appellant Tenant from inviting persons to live with her in the dwelling as licensees. The only relevant statutory requirement in that regard is section 16(n) of the Act under which a tenant must notify in writing the landlord of the identity of each person (other than a multiple tenant) who, for the time being, resides ordinarily in the dwelling.
However, under clause 3.12 of the letting agreement provided to her the tenant was required to covenant:
Not to assign or sublet, part with possession of the property, or let or allow any other person live at the property without the Landlord’s written consent and to pay to the Landlord any reasonable costs or expenses incurred in deciding this request whether consent is granted or refused.
The foregoing provisions of the lease imposed obligations additional to those specified in section 16 of the Act on the Appellant Tenant, but those obligations are, in accordance with section 18(3) of the Act, considered by the Tribunal to be consistent with the Act.
Following receipt of the draft letting agreement the Appellant Tenant, having already discussed certain modifications with the agent for the Respondent Landlord sent an e-mail to the agent seeking confirmation of the changes she required in relation to her wish to be released from paragraph 3.14 of the agreement to enable her to work from home, permission to keep a cat in the dwelling, clarification of the requirements in relation to tending to the garden, arrangements for having the chimneys swept, permission to keep a gas cooker in the conservatory and an inventory of all of the furniture in the dwelling. The reply she received confirmed that she had permission to use one of the bedrooms as an office, that it was fine to keep one cat in the dwelling, that her only responsibility in relation to the garden was to keep the grass cut, that the chimney had been cleaned, that it would not be possible to use her gas cooker inside the dwelling and that an inventory would be carried out at the property. Following up on this, permission to use one bedroom as an office, permission to keep a cat in the dwelling and the prohibition on use of a gas cooker in the dwelling were included in the Special Conditions of the letting agreement prepared for her and the landords’ signature.
Throughout the Tribunal hearing the Appellant Tenant emphasised the importance to her of having an unencumbered right to decide who and how many people were to live with her in the dwelling, subject only to a requirement that she notify details of any such person or persons to the Respondent Landlords. She maintained that this had been discussed and agreed with the agent for the Respondent Landlords and that as a result of those discussions it had been agreed that clause 3.12 of the letting agreement would not apply to her. However, the Appellant Tenant, after getting advice from Threshold, did seek and was given written confirmation of the other modifications she had sought to the draft letting agreement.
In circumstances where the Appellant Tenant had entered into the letting agreement with the full intention to bring other people into the dwelling to contribute to the rental cost, and also her declared right to choose who was to live with her, which she said was so important to her, it is inconceivable in the view of the Tribunal that she would not have sought confirmation in writing that clause 3.12 did not apply to her, with a view to having a provision to this effect included in the special conditions to the letting agreement. The reasons she gave for not seeking such confirmation were not convincing. The only conclusion the Tribunal can come to therefore is that the Appellant Tenant signed the letting agreement in the full knowledge that clause 3.12 remained in the agreement and that she was therefore bound by that clause. The Tribunal accepts and makes such findings that the copy of the letting agreement supplied by the Respondent Landlords is the agreement as signed by both the Appellant Tenant and the Respondent Landlords and that this agreement, having been signed by the landlords was posted to the tenant at the address of the dwelling. The Tribunal does not accept the tenant’s assertion that either the agent for the landlords or she herself, with the consent of the agent, wrote N/A i.e. not applicable opposite paragraph 3.12 before she signed the agreement. The Tribunal is supported in this view by the differing versions put forward by the tenant as to who was alleged to have added N/A to the letting agreement. The Tribunal further finds that there was no substance whatever to the tenant’s suggestion that the pages of the agreement she initialled were later substituted by other pages.
Finding 3 The Appellant Tenant is in breach of clause 3.14 of the letting agreement she entered into with the Respondent Landlords.
Reasons: Clause 14 of the letting agreement provided to her required the Appellant Tenant to covenant:
Not to receive paying guests, or carry on, or permit to be carried on, any business, trade or profession on or from the property
The letting agreement signed by the Appellant Tenant included a special condition releasing her from the provisions of clause 14 to the extent only that she was given permission to use one of the bedrooms in the dwelling as an office.
The Tribunal was not provided with sufficient evidence to enable it to assess the nature and scale of the business known as ‘Forever Living’ in which the Appellant Tenant appears to have been involved or the extent to which activity relating to that business was being carried on from the dwelling.
However, the evidence before the Tribunal demonstrated that the Appellant Tenant has up to seven other people at a time to live with her in the dwelling, requiring those people to pay her a deposit of €350 and to pay her €365 per month for rent and utilities. The Appellant Tenant accepted at the hearing that since the commencement of the tenancy in April, 2014, fifteen people have lived at the dwelling on the foregoing basis for varying periods. It is clear also that the tenant took steps herself to increase the number of bed spaces in the dwelling she rented from 5 to 9 and that she brought in additional cooking and refrigeration facilities to cater for the numbers of people she intended to have staying in the dwelling.
The foregoing arrangements created the capacity for the Appellant Tenant to derive an income of up to €2,920 per month from payments to her by other persons living in the dwelling. This amount is well beyond the rental payment of €1400 per month the tenant is required to pay to the Respondent Landlords and in the Tribunal’s view puts the arrangements made by the Appellant Tenant well outside the more normal arrangement whereby a tenant or tenants may bring a licensee or licensees into a dwelling for the purposes of assisting in the payment of the rent. In effect the Appellant Tenant has been receiving and continues to receive paying guests in the dwelling, which she rented under a residential tenancy agreement. This is contrary to the provisions of clause 3.14 of the tenant’s letting agreement.
Finding 4 The Notice of Termination served by the Respondent Landlords on the Respondent Tenant on 21 November, 2014 is valid.
Reasons: Under the provisions of sections 27 and 28 of the Act, the tenancy, having commenced on 13 April 2014, became a Part 4 tenancy with effect from 13 October, 2014. The tenancy was also a fixed term tenancy, with the letting agreement specifying that the period of the tenancy was for a fixed term of 12 months commencing on 13 April, 2014 and expiring on 12 April, 2015.
In those circumstances the tenancy could only be terminated by the landlords on grounds that the tenant had failed to comply with any of her obligations in relation to the tenancy (whether arising under the Act or otherwise). Before seeking to terminate the tenancy on that basis, the landlords were required under the provisions of paragraph 1 of the Table to section 34 of the Act to notify the tenant of the alleged failure and to state that the landlord was entitled to terminate the tenancy if the failure was not remedied within a reasonable period specified in the notification. There is no requirement for such notification to be in writing.
Having given very careful consideration to all of the evidence provided to the Tribunal, the Tribunal is of the view that the weight of evidence falls in favour of the Landlords. This is on the basis of the evidence presented to the Tribunal by the landlords’ former agent that during the period between the alleged breaches by the tenant of her obligations being brought to his attention and the issue to her of notice of termination, he had notified the tenant of her alleged failure to comply with her obligations and advised her that the landlord was entitled to terminate the tenancy if the failure was not remedied within a specified reasonable period. This particular set of facts was largely, if not wholly, unchallenged and the evidence was entirely credible in all of the circumstances. The Tribunal is further satisfied that the Appellant Tenant did not remedy her failure to comply with her obligations within the specified period and that the Respondent Landlords were entitled accordingly to issue her with notice of termination. On that basis the Respondent Landlords were in compliance with the provisions of section 1(a) and (b) of the Table to section 34 of the Act before they issued a valid notice of termination to the Appellant Tenant.
The notice of termination served on the Appellant Tenant on 21 November, 2014 complied with the provisions of sub-sections (1)(a),(b),(c),(e),(f) and (g) of section 62 of the Act. The notice of termination also gave the tenant the period of notice of 28 days required under section 67(2)(b) of the Act. In accordance, therefore, with section 115(2)(f) of the Act, the Tribunal declares that the notice of termination served on the Appellant Tenant on 21 November, 2014 is valid.
Finding 5 The Tribunal finds that the Respondent Landlords are entitled to damages in the amount of €3,000 in respect of the consequences for them of the breaches by the Appellant Tenant of her obligations under paragraphs 3.12 and 3.14 of the letting agreement between her and the Respondent Landlords.
Reason: The Tribunal is satisfied that the Respondent Landlords have suffered serious distress, loss, expense and inconvenience as a result of the breaches by the Appellant Tenant of her obligations under the letting agreement she entered into with the Respondent Landlords. The Tribunal considers that the appropriate quantum of damages to award in the circumstances of this case is €3,000.
In exercise of its powers, therefore, under section sub-section (1)(d) of section 115 of the Act the Tribunal directs that damages in the amount of €3,000 shall be paid by the Appellant Landlord to the Respondent Tenants.

Finding 6 : The Tribunal finds that the Respondent Landlords were not in breach of their obligations under the Act to allow the Appellant Tenant to enjoy peaceful and exclusive occupation of the dwelling.
Reasons: Section 12(1)(a) of the Act provides that the landlord of a dwelling shall allow the tenants of a dwelling to enjoy peaceful and exclusive occupation of the dwelling. The evidence provided to the Tribunal failed to establish that the Respondent Landlords breached their obligations as set out in section 12(1)(a) of the Act. The main grounds on which the tenant relied to support her assertion that the landlords had failed to allow her peaceful and exclusive occupation were the numbers of e-mails and phone calls to her by the landlords’ agents about various matters that had arisen in relation to the tenancy, together with visits to the dwelling by the agents, without agreement in advance with the Appellant Tenant.
The Tribunal has examined the various e-mails sent to the tenant by the landlords’ agents and is satisfied that they were sent for legitimate purposes connected with the tenancy by the agents managing the letting of the dwelling on behalf of the landlords. The Tribunal is further satisfied that telephone calls were made by the agent for the same purposes, and that neither the e-mails sent nor the telephone calls made were for the purposes of harassing the tenant as she has alleged. On the contrary, given the level of concern that arose in relation to the numbers of persons living in the dwelling without the consent of the landlords and the disruption caused when the Appellant Tenant locked other occupants out of the dwelling, it is the Tribunal’s view that the agents would have been failing in their duty to the Respondent Landlords had they not followed up assiduously on those concerns.
The only recorded incident brought to the Tribunal’s attention of an agent calling to and entering the dwelling without the prior agreement of the tenant occurred on 11 December, 2014 when the landlords’ agent at the time was called by the Gardaí and asked to attend urgently at the dwelling. In the Tribunal’s view it was appropriate in those circumstances for the agent to attend at and enter the dwelling in a situation where Gardaí were already present
8. Determination:
Tribunal Reference TR0215-001041
In the matter of Susi Medeiros (Tenant) and Michael Hanrahan, Joan Hanrahan (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Notice of Termination served on 21 November 2014, by the Respondent Landlords on the Appellant Tenant, in respect of the tenancy of the dwelling at 48 Villa Park Gardens, Navan Road, Dublin 7, is valid.
2. The Appellant Tenant and all persons residing in the above dwelling shall vacate and give up possession of the above dwelling within 14 days of the date of issue of the Determination Order by the Board.
3. The Applicant Tenant shall pay the total sum of €3,000 to the Respondent Landlords by way of three consecutive monthly payments of €1,000 on the 28th day of each month, commencing the next month after the issue of the Determination Order by the Board. This sum represents damages in respect of the consequences for the Respondent Landlords of the breaches by the tenant obligations in respect of the tenancy of the above dwelling.
4. The enforcement of the Order for such payment of €3,000 will be deferred and the total sum owing reduced by the cumulative sum paid in the monthly instalment(s) made by the Applicant Tenant to the Respondent Landlords on each due date until such time as the total sum of €3,000 has been paid in full.
5. For the avoidance of doubt any default in the payment of the monthly instalments of €1,000 shall act to cancel any further deferral and the balance due at the date of default shall immediately become due and owing to the Respondent Landlords.
6. The Applicant Tenant shall also pay any rent payable from 9 July, 2015 (the last date of the hearing) at the rate of €1,400 per month or proportional part thereof at the rate of €46.03 per day, unless lawfully varied, and any other charges as provided for under the terms of the tenancy agreement, for each month or part thereof, until such time as she vacates the above dwelling.
7. The Respondent Landlords shall refund the entire of the security deposit of €1,400.00 to the Appellant Tenant, on gaining vacant possession of the above dwelling, less any amounts properly withheld in accordance with the provisions of the Act.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 08/08/2015.
Signed:

Finian Matthews Chairperson
For and on behalf of the Tribunal.

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001636 / Case Ref No: 1115-22684
Appellant Landlord: Sean Mulryan
Respondent Tenant: Andrejs Smirnovs, Edite Beitika
Address of Rented Dwelling: 68 Barretstown Court, Whitewater Plaza,
Newbridge , Dublin, W12R296
Tribunal: John Keane (Chairperson)
Finian Matthews, Louise Moloney
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 13 May 2016 at 10:30
Attendees: Michael Venn (Landlord’s Barrister)
Robert Alexander (Landlord’s Solicitor)
Arlene Hurley (Financial Controller of Landlord’s
Letting Agent)
David Bourke (Employee of Landlord’s Letting
Agent)
Andrejs Smirnovs (Tenant)
Edite Beitika (Tenant)
In Attendance: Wordwave DTI
Ilze Tropa (Interpreter)
1. Background:
On 26 November 2015 Andrejs Smirnovs & Edite Beitika ( called the
“Respondent/Appellant Tenants” or “Tenants” in this report) made an application to the
Residential Tenancies Board (“the RTB”) pursuant to Section 76 of the Residential
Tenancies Act 2004 as amended (“the Act”). The matter was referred to an Adjudication
which took place on 18 January 2016. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €3,000 to the Applicant Tenants
within 14 days of the date of issue of the Order being damages for breach of
Landlord obligations under Section 12 (1) (a) and 12 (1) (b) of the Residential
Tenancies Act 2004 by unlawfully interfering with the Applicant Tenants’ right to the
peaceful occupation of the dwelling at 68 Barrettstown Court, The Avenue,
Whitewater Plaza, Newbridge, Co. Kildare and for failure to carry out necessary
repairs of the above dwelling.
Subsequently an appeal was received from Sean Mulryan (called the “Appellant/
Respondent Landlord” or “Landlord” in this report) on the 29 February 2016 which was
approved by the Board on the 1 March 2016. The grounds of the appeal were breach of
the Landlord’s obligations and breach of Tenants’ obligations. An appeal was received
from the Tenants on the 1 March 2016 which was approved by the Board on the 2
March 2016. The grounds of the appeal were breach of the Landlord’s obligations and
error in addressing the level of damages for breach of Landlord`s obligations.
The RTB constituted a Tenancy Tribunal and appointed John Keane, Finian Matthews,
Louise Moloney as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed John Keane 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 13 May 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
The Appellant/Respondent Landlord submitted the following documentation and there
was no objection to the submission by the Respondent/Appellant Tenants:
Breakdown of electricity charges from the prepay electricity provider, Pinergy relating to
the dwelling.
The Respondent/Appellant Tenants submitted the following documentation and there was
no objection to the submission by the Appellant/Respondent Landlord:
Electric Ireland electricity bill for period 8 September 2015 to 3 November 2015.
The Respondent/Appellant Tenants also sought to submit a medical report and a printout
from the website, Bonkers.ie, showing amounts charged by various electricity providers.
The Tribunal noted the objection to the admission of the documents by the Landlord’s
Representative. The documentation was not allowed to be submitted by the Tribunal as
all documentation is required to be submitted 5 days in advance of the hearing other than
in exceptional circumstances as per rule 11 of the rules under Section 109 of the Act. The
requirement to submit documentation 5 days in advance was notified to the parties in the
document entitled ‘Tribunal Procedures’’ circulated in advance of the hearing. In relation
to the printout from the website, Bonkers.ie, the Tribunal finds that the submission of this
document would have been prejudicial to the Landlord as he was not afforded the
opportunity to make enquiries regarding the contents of the document prior to the
hearing. Further with regard to any medical evidence, the Tribunal is of the view that the
Tenants’ Doctor is required to attend the Tribunal to prove any claims of a medical nature
arising as a result of the tenancy.
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
said that he would be happy to clarify any queries in relation to the procedures either then
or at any stage over the course of the Tribunal hearing.
The Chairperson 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
as both parties had lodged appeals, the person who was the original applicant, in this
case the Tenants, would be invited to present their case first; that there would be an
opportunity for cross-examination by the Landlord; that the Landlord would then be invited
to present his case, and that there would be an opportunity for cross-examination by the
Tenants.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and 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. 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 said that members of the Tribunal would ask questions from time to time
to assist in clarifying the issues in dispute between the parties. The Chairperson
explained that should the parties indicate that they would be able to resolve the dispute
through negotiation. the Tribunal would facilitate any such settlement.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
5. Submissions of the Parties:
Appellant/ Respondent Landlord’s Case:
The Landlord’s Representative explained that Sean Mulryan was no longer the landlord
since the 11 March 2016 and that the current landlord is Whitewater DAC. He explained
that the Landlord was not contesting the Tenants’ claim regarding the breach of the
Landlord’s obligations in the standard and maintenance of the dwelling arising from the
leaks caused by a malfunctioning water pump and leak from the washing machine,
resulting inconvenience caused to the Tenants and delay in addressing the issue. He also
said that the Landlord accepted that on two occasions Agents for the Landlord had
entered the dwelling without the permission of the Tenants and that on both occasions
the Tenants were not present in the dwelling.
Mr Bourke gave evidence that the CCTV camera was removed two days prior to the
Tribunal hearing. He explained that the Landlord had received complaints about antisocial
behaviour as a result of homeless people and children accessing the common
areas of the apartment complex. He stated that it was never the intention to invade the
Tenants’ privacy. He explained that the camera is controlled remotely from a control room
in a nearby shopping centre. He clarified that the camera could be pointed directly at the
dwelling but there was a protocol in place with the security company that it would not be
pointed at the dwelling.
Mr Bourke clarified that the prepay electricity meters were installed as the Landlord
wanted to avoid incurring re-connection costs arising from the failure of some of the
tenants in the apartment block (other than the Respondent/Appellant Tenants) to pay
their electricity bills. Ms. Hurley explained that the charge per unit of electricity was
slightly cheaper with the prepay provider but the standing charge was €120 more
expensive than Electric Ireland.
Respondent/Appellant Tenants’ Case:
The Tenants outlined that they received a letter dated the 11 November 2014 from the
Landlord’s Agents notifying them that a prepay electricity meter was being installed in all
apartments. They said that this letter outlined that a clause allowing the installation of a
prepay electricity meter was going to be inserted in all renewals of Letting Agreements
and stated that any tenant who did not want to renew on the basis of a prepay electricity
meter being installed must provide the Landlord with sufficient notice to vacate the
property. The Tenants told the Tribunal that no explanation was given as to the reason for
installing prepay meters. In January 2015, they stated that they received phone calls from
the Landlord’s agents stating that they would have to move out of the dwelling if they did
not allow the installation of the prepay electricity meter. The Tenants’ Letting Agreement
came up for renewal and they signed the renewal Letting Agreement on the 27 February
2015 although the Agreement is dated the 26 March 2015. The Tenants pointed out to
the Tribunal that they were aware at the time of signing the renewal Letting Agreement
dated the 26 March 2015 of clause 3.4.1 which provided that the Tenants shall permit the
Landlord or his Agent to enter the dwelling on giving reasonable notice to install, change,
alter or maintain a prepay power meter. The Tenants outlined that they felt they had no
choice but to sign the Letting Agreement dated the 26 March 2015 as it was very difficult
to find a similar dwelling in the locality. After signing the Letting Agreement, the Tenants
sought advice from two different solicitors. The Tenants` Solicitors on the first occasion
wrote to the Landlord`s Agents on the 16 March 2015 advising as to the Tenants
objections to the prepay meter. The Tenants` Solicitors on the second occasion wrote to
the Landlord’s Agent on the 6 October 2015 and pointed out that the standing charge for
the prepay electricity meter is €139.08 more than the Electric Ireland’s standing charge
which was being paid at the time. The Tenants stated that the dwelling was accessed
without their permission in or around the 27 November 2015 when they were abroad in
order to install the prepay electricity meter.
The Tenants submitted a bill of €100.80 from Electric Ireland for period 8 September
2015 to 3 November 2015. They said that they were paying in the region of € 50 to €55
per month when they were with Electric Ireland and the cost of electricity using the
prepay meter was in the region € 60 to €70 per month. They said that they were paying at
least €120 per year more using the prepay meter. The Tenants confirmed at the date of
the Tribunal hearing that they had no complaint lodged for dispute resolution with any
forum other than the RTB regarding the installation of the prepay meter.
The Tenants outlined that a CCTV security camera was installed on an adjacent building
in May/June 2015 by the Landlord. They explained that they first contacted the
Landlord’s Agent in July/August 2015 and subsequently complained on many occasions
regarding their concerns that the camera could be used to view into the dwelling through
their living room and bedroom windows The Tenants’ solicitor wrote to the Landlord’s
Agent on the 6 October 2015 regarding the positioning of the CCTV camera requesting
that the camera would be lowered to a point where it does not align with the dwelling. Ms.
Beitika outlined that as a result of the CCTV camera, she could not sleep at night and felt
that her human rights had been violated. The Tenants accepted that the camera had
been removed two days prior to the hearing. Under cross examination by the Landlord’s
Representative, the Tenants accepted that people parking in the multi storey car park
opposite the apartment block where the dwelling was located could have a view of the
dwelling.
The Tenants stated that they had a problem with the water pump which started leaking on
the 15 October 2015. They explained that a plumber called on the evening of the 15
October but did not fix the problem. They outlined that he turned off the water supply to
the bathroom and as a result the only water supply to the dwelling was a cold water
supply from the tap in the kitchen. The Tenants also outlined that they had a problem with
a leak from the washing machine on the 20 October 2015 resulting in water leaking onto
the carpets which made them smell badly. They stated that the Landlord’s Agent said he
would arrange for the carpet to be cleaned but this was never arranged. They told the
Tribunal that the problem with the water pump and washing machine was fixed on the 20
October 2015. However, they explained that they could not live in the dwelling for three
weeks while the carpet was drying. Ms. Beitika stated that they did not give permission to
the plumber to access the dwelling in their absence. She said she was shocked when she
arrived at the dwelling and found a person in it who subsequently informed her that he
was the plumber.
The Tenants stated that the lights in the corridor in the common area used to access the
dwelling were not working for 3 months leading up to February 2015.
The Tenants were seeking freedom of choice of electricity provider, 3 weeks rent for the
period they claimed they had to move out of the dwelling, damages of €10,000 and legal
fees of €500.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The tenancy commenced on the 26 March 2009 and has not ended. .
2. The deposit was €800 and the rent is €850 per month.
3. The CCTV security was removed 2 days prior to the hearing.
4. There was a breach of the Landlord’s obligations in the standard and maintenance of
the dwelling arising from the leaks caused by a malfunctioning water pump, resulting in
inconvenience caused to the Tenants and delay in addressing the issue. The Landlord`s
Agents entered the dwelling on two occasions during the tenancy without the Tenants
permission and on each occasion the Tenants were not in the dwelling.
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 the Landlord to be named in these proceedings is
Sean Mulryan.
The Landlord’s Representative stated that the Whitewater DAC had taken over as
landlord from the 11 March 2016. However, the Landlord at the time the Tenants made
an Application for Dispute Resolution Services was Sean Mulryan. Sean Mulryan was
also the Landlord at the date of the Adjudication hearing and the case before the Tribunal
is an appeal from that hearing. Therefore, Sean Mulryan is the Landlord in these
proceedings.
7.2 Finding: There was a breach of the Landlord’s obligations in the standard and
maintenance of the dwelling arising from the leaks caused by a malfunctioning water
pump and the failure to attend to fixing the lighting in the common area resulting in
inconvenience and distress caused to the Tenants.
Reasons:
A landlord is obliged under section 12(1) (b) of the Act to carry out all repairs and
replacement of fittings so the interior of the dwelling and fittings are maintained in at least
the condition they were at the commencement of the tenancy.
The Landlord’s representative did not contest the complaints regarding the problems that
arose in relation to the malfunctioning water pump on the 15 October 2015, the delay of
five days in having it repaired where the Tenants could not use the bathroom and the
subsequent leak causing water damage to the carpets in the dwelling resulting in a smell
in the dwelling when the carpets were drying out.
The Landlord’s Representative did not contest that the lighting in the common areas was
the Landlord’s responsibility to address. The Tribunal accept the Tenants’ evidence that
they experienced problems with the lighting in the common areas.
The Tribunal awards damages of €400 for the distress and inconvenience caused to the
Tenants in this regard.
7.3. Finding: The Tribunal finds that the Landlords are in breach of the provisions of
sections 30 and 31 of the Act
Reasons:
The Tribunal finds that the Tenants did not willingly sign the Letting Agreement dated the
26 March 2015 between Sean Mulryan & Whitewater nominees and the Tenants which
included a new provision permitting the Landlords to install a prepay electricity meter with
the choice of the prepay meter at the sole discretion of the Landlord. The Tribunal
accepts the evidence of the Tenants that they signed the Letting Agreement dated the 26
March 2015 as they were informed by the Landlord’s Agent that they would have to move
out of the dwelling if they were not agreeable to the installation of the prepay electricity
meter. Sections 30 and 31 of the Act provide that a term of a Letting Agreement cannot
be varied if it is inconsistent with the Act other than by agreement in a Part 4 tenancy or
further Part 4 tenancy. A Part 4 tenancy arises where the Tenants has been in occupation
of the dwelling for a continuous period of 6 months. The Tenants are entitled to remain
in the dwelling for a further period of 3 ½ years unless the tenancy is terminated under
the grounds set out in Section 34 of the Act. A further Part 4 tenancy arises where the
Tenants have been in occupation of the dwelling for a continuous period of 6 months in
the subsequent four year cycle. The tenancy commenced on the 26 March 2009. At the
date of the Letting Agreement dated the 26 March 2015, the Tenants had the benefit of a
further part 4 tenancy until the 25 March 2017. The Tribunal is satisfied that the Tenants
would not have signed the Letting Agreement dated the 26 March 2015 if they were
aware that they were entitled to continue in occupation of the dwelling until the 25 March
2017 without the terms at the commencement of the further Part 4 tenancy being varied
with regard to the requirement to install a prepay meter. The Tribunal finds that the
Letting Agreement dated the 26 March 2015 was signed under duress in respect of the
clause allowing the Landlords to install a prepay electricity meter and accordingly the
Tenants should not be liable for any increased electricity charges as a result of the
installation of the meter. The Tribunal accepts that figure provided by the Landlords’
Representative of €120 per year being the increase in cost which is the difference
between the standing charge with Electric Ireland and the prepay electricity provider. The
prepay meter was installed at the end of November 2015. The Tribunal awards €160
being 16 months at €10 per month from the period from the end of November 2015 to the
end of the part further part four tenancy on the 26 March 2017.
7.4 Finding: The Tribunal finds that the Landlords breached their obligation to allow the
Tenants to enjoy exclusive and peaceful occupation of the dwelling.
Reasons:
A landlord is obliged under section 12(1) (a) of the Act to allow a tenant to enjoy exclusive
and peaceful occupation of the dwelling.
The Landlords’ representative did not contest the Tenants’ claim that the dwelling was
accessed without the permission of the Tenants to install the prepay meter when they
were abroad. In this respect the Tribunal finds that the Landlord was in breach of his
obligations under section 12(1) (a) of the Act to allow a tenant to enjoy exclusive and
peaceful occupation of the dwelling and awards damages of €500 for the distress caused
to the Tenants.
The Landlord’s Representative accepted that a plumber accessed the dwelling without
the permission of the Tenants in October 2015. The Tribunal finds that the Landlord was
in breach of his obligations under section 12(1) (a) of the Act to allow a tenant to enjoy
exclusive and peaceful occupation of the dwelling and awards damages of €200 for the
distress caused to the Tenants.
The Tribunal finds that there was distress caused to the Tenants as a result of the CCTV
camera which was erected on the building adjacent to the dwelling by the Landlords. The
Tribunal accepts the submissions on behalf of the Landlords that the camera was erected
for security purposes. However, Mr Bourke accepted that the camera was capable of
being rotated to view through the window of the dwelling. The Tribunal finds that the
camera should have been removed or relocated immediately following the legitimate
complaints of the Tenants. The CCTV camera was not removed until 2 days before the
hearing. The Tribunal finds that the Landlord was in breach of his obligations under
section 12(1) (a) of the Act to allow a tenant to enjoy peaceful occupation of the dwelling
and awards damages of €1,000 for the distress caused to the Tenants.
7.5 Finding: The Tenants are not entitled to legal costs.
Reasons:
Section 5(2) of the Act provides that legal cost can only be awarded in exceptional
circumstances. The Tribunal does not find the circumstances in this case to be
exceptional.
8. Determination:
Tribunal Reference TR0216-001636
In the matter of Sean Mulryan (Landlord) and Andrejs Smirnovs, Edite Beitika
(Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The Appellant/Respondent Landlord shall pay the total sum of €2,260 to the
Respondent/Appellant Tenants, within 21 days of the date of the issue of the
Determination Order by the Board being damages in the amount of €1,700 for breach
of Appellant/Respondent Landlord’s obligations under s. 12(1)(a) of the Residential
Tenancies Act 2004 as amended, by unlawfully interfering with the Respondent
Tenants right to peaceful and exclusive occupation , and damages in the amount of
€400 for breach of the Appellant/Respondent Landlord’s obligations under s. 12(1)(b)
of the Residential Tenancies Act 2004 as amended for the distress and inconvenience
caused to Respondent/Appellant Tenants in relation to the standard and maintenance
of the dwelling and damages in the amount of €160 for varying the terms of the
tenancy without the Respondent/Appellant Tenants agreement in breach of Sections
30 and 31 of the Act in respect of the tenancy of the dwelling 68 Barretstown Court,
Whitewater Plaza, Newbridge, Co. Kildare.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
30 May 2016.
Signed:
John Keane 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
,
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001682 / Case Ref No: 0116-23456
Appellant Landlord: Linda O’Donovan
Respondent Third Party: Eoghan OBrien
Address of Rented Dwelling: 6 Winsley Terrace, Glasheen Road , Cork,
T12X7HP
Tribunal: Elizabeth Maguire (Chairperson)
Gerard Murphy, Peter Shanley
Venue: Committee Room 1, Cork City Council, City Hall,
Anglesea Street, Cork
Date & time of Hearing: 25 May 2016 at 2:30
Attendees: David Cowhey (Solicitor for the Appellant Landlord)
Linda O’Donovan (Appellant Landlord)
Eoghan O’Brien (Respondent Third Party)
Claire Griffin (Third Party’s witness)
In Attendance: Wordwave t/a DTI Stenographers
1. Background:
On 11 January 2016 the Third Party 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 1 February 2016. The Adjudicator determined that:
1. The Respondent Landlord shall pay the total sum of €2000 to the Applicant
Third Party, within 14 days of the date of issue of the Order, being damages for
breach of landlord obligations under s. 15 of the Residential Tenancies Act 2004 in
relation to the dwelling at 6 Winsley Terrace, Glasheen Road, Cork.
Subsequently the following appeal was received from the Landlord on 21 March 2016.
The grounds of the appeal are Breach of landlord obligations, Breach of tenant
obligations and Anti-social behaviour. The appeal was approved by the Board on 24
March 2016.
The RTB constituted a Tenancy Tribunal and appointed Gerard Murphy, Elizabeth
Maguire, Peter Shanley as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Elizabeth Maguire to be the chairperson of the Tribunal (“the
Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 25 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:
None
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the 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 Respondents; that the
Respondents would then be invited to present their case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission. The Chairperson asked the parties if there were any queries
in relation to the procedures, there were no queries.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present. She said that the Hearing is a Public
Hearing and that members of the public were free to attend. She reminded the Parties
that knowingly providing false or misleading statements or information to the Tribunal was
an offence punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The witnesses intending to give evidence were sworn in.
5. Submissions of the Parties:
Appellant Landlord’s Case:
The Appellant Landlord gave evidence that she lives in another town in County Cork,
which is approximately 90 minutes drive from the dwelling. She bought the dwelling in
June 2013, and first rented it out to five student nurses in September 2013. She had met
the Third Party Respondent, who was the next door neighbour, when the dwelling was
being renovated. She said that they had exchanged contact details.
She gave evidence that there had been no complaints during the currency of that
tenancy. She said that there was other student accommodation in the area. She said that
in general she got on well with the neighbours and she communicated with them about
other matters, for example, the plastering of a common chimney.
She described the dwelling as a terraced five bedroomed house. On 6 September 2015,
she let the dwelling to five male students.
She became aware of difficulties in mid-September 2015. She received text messages
from the Respondent Third Party, who is the next door neighbour, and was made aware
that there was a noise problem in the dwelling, very late at night.
She said that she went to the dwelling the following morning and addressed the complaint
straight away by speaking to the tenants. She said that she informed them of the
complaint, and that their noise was disturbing the neighbours. She said that the tenants
had apologised and said that it would not happen again.
She said that there was another complaint later that month (September 2015), and she
said that she again addressed this right away by attending in person at the dwelling and
speaking to the tenants. She said that she told the tenants that she would terminate the
tenancy if this happened again. She asked the tenants to apologise in person to the
Respondent Third Party. On that occasion, they did not do so, and she said that she told
them again to do so.
She said that she was satisfied that the matter was resolved at this stage, as there was
what she termed a “lull” before there were further complaints of excessive noise late at
night. She said that she attended at the dwelling and spoke to the tenants, and she
texted the tenants to inform them of the complaints.
The Appellant Landlord gave evidence that she was made aware of an allegation that one
of the tenants had thrown builder’s sand over a parked car. She said that she met the
tenants, who denied that it was any of them that had done this, but was a person who
was visiting them at the time. The tenants told her that they had told this person not to
visit again.
The next complaint she received was some weeks later. She said that “everything had
died down”. She attended at the Third Party’s house in early December 2015, and met
Ms. Griffin. She said that Ms. Griffin told her that all was quiet in the dwelling at that time.
She assumed that there were no outstanding issues.
After Christmas 2015, she said she received another text from the Third Party
complaining about the tenants’ anti-social behaviour by way of excessive noise late at
night. She attended at the dwelling in person and she told the tenants they would have to
leave. She also contacted their parents. When asked by the Tribunal whether the
parents of the tenants were parties to the lease, she said this was not the case, nor were
they guarantors of the tenants.
The complaint was then lodged by the Third Party to the PRTB in January 2016.
The Appellant Landlord said that she had met Ms. Griffin and the Third Party on two
occasions. This was later clarified in that she had met each of them once in person after
the commencement of the tenancy.
She said that in November 2015 she had given an oral warning to the tenants that she
would have to terminate the tenancy. They told her that they had no alternative
accommodation. She said that they had promised her that this would not happen again.
She agreed that she had not replied to the Third Party’s text messages. She said that
she took the view that she had acted on each complaint by attending at the dwelling and
talking to the tenants and receiving the assurances that the behaviour would improve.
She said that the Third Party and Ms. Griffin knew that she had attended at the dwelling.
She had not had any communication from the Gardai or UCC. She said she was aware
that the tenants had had a warning from UCC and there had been a meeting between the
tenants and the UCC authorities, but she was not aware of the outcome of the meeting.
She acknowledged that she should have responded to the Third Party’s text messages,
to confirm that she had contacted the tenants and to notify them that she was responding
to their complaints.
She said that her position was that she responded to each complaint promptly by
attending at the dwelling and speaking to the tenants and giving them warnings. She said
she did not realise that the situation was completely out of hand. She confirmed that she
has other dwellings which are holiday lettings and she has a B&B business. She said she
regretted that matters had got to this stage and that she felt the relations with the Third
Party are “a little strained” and she didn’t want it to be that way. She said that she sought
to minimise the nuisance caused by the tenants and to prevent the commission of the
nuisance. She said that she felt that she had done everything that she could have done
to deal with the complaints.
The Appellant Landlord said she had had no complaints from other Third Parties, such as
other neighbours.
She confirmed that the tenants vacated the premises voluntarily on 16 March 2016. This
was following the adjudication hearing and report. She said that she sent the report to
the tenants, and she also sent a letter telling them that they had to vacate the dwelling.
Following this, some of the tenants moved out and the other tenants decided that they
could not continue to pay the full rent.
The Appellant Landlord confirmed that the dwelling is currently vacant and that she was
waiting for the finalisation of this matter, and she intends letting it again in September
2016. She said that she would be more careful with the letting, although she believed at
the time when the tenancy commenced that the tenants were good tenants.
Respondent Third Party’s Case:
The Third Party gave evidence that he was disappointed that matters had gotten to this
stage. He said that initially when complaints regarding anti-social behaviour were made
he had hoped that it would be resolved.
He and Ms. Griffin are the next-door neighbours of the dwelling.
He said that there are 8 houses in a terrace, two of which are rented to students. The
other 6 are owner occupied. It was always a quiet neighbourhood. He said that the
dwelling is a three bedroom house, but that the Appellant Landlord had converted the
front sitting room and the utility room to bedrooms, to accommodate five persons. He
said that as a result of the configuration of the dwelling, all of the social interaction of the
tenants was in the kitchen/living room area, and the sound funelled up into his bedroom
through the dwelling.
He said that they could hear running up and down the stairs, persons cooking in the
kitchen, calling to one another in the dwelling, laughing and drinking at 3.30am – 4am. He
said that they did not mind a certain amount of noise, and both he and Ms. Griffin had
been students themselves. However, they both had work obligations and had to get up at
7am each morning.
He said that the five young men who were tenants did not keep working hours, whereas
he and his partner Ms. Griffin both have jobs with normal working hours. He said that it
was inappropriate for the Appellant Landlord to rent the dwelling to five young male
students in a particularly residential area. He said that the tenants had to respect the law
and were required to respect their privacy.
He said that there had been a few issues with the previous tenants, but they had regular
hours as they were working on shifts as student nurses. He had complained to them (the
previous tenants) in person about noise from a party and this had resolved the matter.
He confirmed that he had made 8 or 9 complaints to UCC Campus Watch – through the
system set up by UCC. He had also complained to the Accommodations Officer in UCC
and the Gardai, as well as the Appellant Landlord.
The first time there was a problem with late night noise he found the Appellant Landlord’s
number on the internet. He confirmed that he had met her when the dwelling was being
renovated, but had only been introduced to her by her first name. He obtained her
second name from another neighbour, and found her details on the internet as he knew
she had rental accommodation in a certain town in County Cork. He said he had never
received a response to his text messages. The Appellant Landlord had called in once to
him and once to Ms. Griffin.
The tenants had called in once to apologise, in or about October 2015. This was after he
had contacted the Gardai one night to complain about the noise. The tenants offered to
give them (the Third Party and Ms. Griffin) their telephone numbers. The Third Party and
Ms. Griffin gave evidence to the effect that they could not see how having the tenants
telephone numbers would alleviate the problems they were experiencing.
Ms. Griffin said she had called to the tenants in September 2015 and they had agreed to
keep the noise level down. The Respondent Third Party called into them on the 10th/11th
September 2015 in relation to a loud party. He gave evidence that he found the issue
very stressful and Ms. Griffin dealt with it from then on, as he found it too difficult to deal
with himself.
The Respondent Third Party said that on one occasion in or about November 2015, he
was at home at lunchtime to supervise some building work being carried out. One of the
tenants took some builder’s sand and threw it over a parked car. He said that the tenants
were drunk and laughing at this. He said that the builder cleaned the sand off the car.
He said he made many complaints to UCC, and sent many text messages to the
Appellant Landlord, often late at night or in the very early morning when there was loud
noise and disturbance in the dwelling. He received no confirmation from UCC that any
action was being taken, and the noise problem continued. He said he had given the
Appellant Landlord’s details to the Gardai and to UCC Campus Watch. He had not been
informed that any meeting had taken place between the tenants and UCC Campus
Watch.
Ms. Griffin confirmed that the Appellant Landlord had called to their house before
Christmas 2015 to give them a cheque for her share of the plastering of the common
chimney as had been agreed between them. She said she had no specific recollection of
saying that all was quiet in the dwelling at that time, but did not dispute the Appellant
Landlord’s evidence in this regard.
The Respondent Third Party said that his final complaint to UCC Campus Watch was on
12 January 2016, and following this he decided to refer the matter to the PRTB, as he felt
that there was no progress being made in dealing with the problem.
He said that going forward he wanted the Appellant Landlord to enforce her obligations as
landlord. He said it was not an excuse for her to say she was not aware of her
obligations under the legislation.
When cross examined on behalf of the Appellant Landlord, the Third Party agreed that
there had been a gap of 7 weeks in or about December 2015 where there was no contact
from him with the Appellant Landlord regarding any complaints of noise and disturbance.
He agreed that he knew that she had threatened to evict the tenants, but he said that in
his opinion, she should have gone through the full proper procedure of eviction.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The tenancy commenced on 6 September 2015.
2. The rent was €1600.00 per month.
3. The tenancy terminated on 16 March 2016.
4. The dwelling is currently vacant.
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 anti-social behaviour, as defined by section 17(1)(b)(iii) has been
established by the Respondent Third Party.
Reasons:
1. Section 17 (1)(b)(iii) states that to behave in a way that is anti-social means:
… (b) [to] engage persistently, in behaviour that prevents or interferes with peaceful
occupation
…(iii) by any person residing in a dwelling (neighbourhood dwelling) in the vicinity of the
dwelling or the property containing the dwelling concerned, of that neighbourhood.
2. The Tribunal accepts the evidence of the Third Party and the witness that there was
significant noise disturbance late at night, and this often occurred on week nights. The
dwelling is in a terrace of houses in a primarily residential, rather than student
accommodation, area. The Tribunal accepts that the noise and disturbance interfered
significantly with the peaceful occupation and enjoyment of the Third Party’s dwelling.
7.2 Finding:
The Tribunal finds that the Respondent Third Party satisfies the required conditions under
section 77 of the Act which entitles him to refer a complaint to a Tribunal hearing in
circumstances where the Appellant Landlord of the dwelling has breached her duty owed
to him under section 15(1) of the Act.
Reasons:
1. The Appellant Landlord did not dispute the fact that the referrer of the complaint (in
this case the Respondent Third Party) is and has been directly and adversely affected by
the breach of her duty alleged in the complaint, and that before making the reference the
referrer, by communicating or attempting to communicate with the relevant party to the
tenancy concerned, (in this case the Appellant Landlord) took all reasonable steps to
resolve the matter.
2. Furthermore section 75(4)(e) states that any reference to a party, without
qualification are references to, in the case of a complaint mentioned in section 77 (i) the
complainant, and (ii) the landlord of the dwelling concerned.
3. The Tribunal accepts that the Third Party also complained to the tenants directly, to
UCC Campus Watch, the UCC Accommodation Office and An Garda Siochana as well as
the Appellant Landlord, prior to referring the dispute to the PRTB. These were all
reasonable steps and were being taken by him in an effort to resolve the matter.
7.3 Finding
The Tribunal finds that the Appellant Landlord is in breach of her obligations under
section 15 of the Act wherein it states that a landlord of a dwelling owes to each person
who could be potentially affected a duty to enforce the obligations of the tenant under the
tenancy.
Reasons:
1. A “person who could be potentially affected” means a person who it is reasonably
foreseeable, would be directly and adversely affected by a failure to enforce an obligation
of the tenant were such a failure to occur.
2. The Tribunal accepts that the Third Party, being the next-door neighbour of the
dwelling in the terrace, is a person who it is reasonably foreseeable would be directly and
adversely affected by a failure to enforce an obligation of the tenant were such a failure to
occur.
3. The Tribunal accepts that the Appellant Landlord attended at the dwelling each time
she received a complaint from the Respondent Third Party regarding noise and
disturbance from the Third Party, in order to speak to the tenants. The Tribunal further
accepts that she explained to them that they were disturbing the neighbours and that they
had to apologise to the Third Party.
4. The Appellant Landlord was aware of the noise and disturbance, and that this was
adversely affecting the Third Party.
5. The tenants were also aware, from direct communication from the Third Party, from
Ms. Griffin, from An Garda Siochana and from UCC, in addition to the communication
from the Appellant Landlord that their behaviour was adversely affecting the Third Party,
and that their behaviour was unacceptable.
6. The Tribunal accepts that the Appellant Landlord threatened the tenants that she
would have to evict them due to their persistent noise and disturbance, but that she did
not follow through with this threat as they said they had no alternative accommodation.
She also contacted their parents, who also pointed out that there was no alternative
accommodation for the tenants. For this reason, and because the tenants promised her
to apologise to the Respondent Third Party and to behave in future, she decided not to
proceed to terminate the tenancy.
7. The Tribunal does not accept that the Appellant Landlord did all within her power to
remedy the situation. She was aware that she could have served a Notice of Termination
of the tenancy due to anti-social behaviour, but she allowed the tenancy to continue in
existence, despite knowing that the Third Party was adversely impacted by the anti-social
behaviour of her tenants.
8. Arising from the Appellant Landlord’s breach, it was reasonably forseeable that the
Respondent Third Party could be, and was, adversely affected.
9. In assessing the quantum of damages awarded to the Respondent Third Party, the
Tribunal considers the totality of all the evidence and the level of distress and
inconvenience suffered by the Respondent Third Party arising from the Appellant
Landlord’s inactions and/or failure to adhere to her statutory obligations under the Act.
10. In particular, the Tribunal notes that the anti-social behaviour commenced almost
immediately after the tenancy commenced in September 2015, and persisted until the
tenancy terminated on 16 March 2016, albeit with some periods where the noise was not
such as to disturb the Notice Party.
11. The Tribunal therefore awards the sum of €3,200.00 in damages for breach of the
Appellant Landlord’s duty to enforce the obligations of the tenants under the tenancy.
8. Determination:
Tribunal Reference TR0316-001682
In the matter of Linda O’Donovan (Landlord) and Eoghan OBrien (Third Party) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Landlord shall pay the sum of €3,200.00 to the Respondent Third Party
within 182 days of the date of the issue of this order, being damages for the
consequences of the Landlords’ breach of duty owed to the Third Party under Section
15 of the Residential Tenancies Act 2004 in failing to enforce Tenants’ obligations in
respect of the tenancy of the dwelling at 6 Winsley Terrace, Glasheen Road, Cork.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
30 May 2016.
Signed:
Elizabeth Maguire Chairperson
For and on behalf of the Tribunal.

 

 

Jones v Doody

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0415-001132 / Case Ref No: 0115-16067
Appellant Landlord: Gerard Jones, Shelia O Malley
Respondent Tenant: Eimear Doody, Jayne Doherty, Elaine Fallon, Cornelia Carey
Address of Rented Dwelling: 18 Merton Avenue , Dublin 8, D08AH60
Tribunal: Finian Matthews (Chairperson)
Peter Shanley, Dervla Quinn
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2,
Date & time of Hearing: 12 October 2015 at 10:30
Attendees: Gerard Jones (Appellant Landlord)
Shelia O Malley (Appellant Landlord)
John Quinn(Appellant Landlord’s Representative)

Cornelia Carey (Respondent Tenant)
Jayne Doherty (Respondent Tenant)

In Attendance:
Gwen Malone Stenographers
1. Background:
On 07 January 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 09 March 2015. The Adjudicator determined that:
1. The Notice of Termination served on the 29th of December 2014 in respect of the tenancy of the dwelling at 18 Merton Avenue, Dublin 8, is invalid.
2. The Respondent Landlords shall pay the sum of €2,000.00 to the Applicant Tenants, within 42 days of the date of issue of the Determination Order, being damages for breach of obligations in invalid notice of termination and in attempted unlawful termination, in respect of the tenancy of the above dwelling.
Subsequently the following appeals were received from the Landlord on 15 April 2015. This appeal was approved by the Board on 28 April 2015.
The PRTB constituted a Tenancy Tribunal and appointed Peter Shanley, Dervla Quinn, Finian Matthews as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Finian Matthews to be the chairperson of the Tribunal (“the Chairperson”).
On 9 September 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 12 October 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:
A dossier of the specific documentation relating to the case on which the Appellant Landlords wished to rely was submitted at the Tribunal by their legal representative with copies being supplied to the Respondent Tenants and the Tribunal members.
4. Procedure:
Opening the Tribunal the Chairperson stated that it had been established to hear two appeals by the Appellant Landlords against determinations made following adjudications held on 9 March, 2015 and 19 May, 2015 in the case of a dispute between the Landlords and the Respondent Tenants in respect of a tenancy at 18 Merton Avenue, Dublin 8. He stated that both appeals would be heard together.
The Chairperson introduced the members of the Tribunal to the parties.
He asked the Parties present and any witnesses to identify themselves and to state the capacity in which they were attending the Tribunal hearing. He confirmed with the Parties that they had received the relevant papers from the PRTB in relation to the case and that they had received and understood the PRTB document entitled “Tribunal Procedures”. Both Parties confirmed that they had done so. The Chairman said that he would be happy to clarify any queries in relation to the procedures either then or at any stage over the course of the Tribunal hearing.
The Chairperson then explained that the Tribunal hearing, as stated in its procedures, was not intended to be very formal, but that the Parties must follow any instructions given by the Chair, that evidence would be given under Oath or Affirmation, would be recorded by the stenographer present, and that based on that recording a transcript could be made available to the Tribunal if necessary, to assist it in preparing its report on the dispute. The parties confirmed that they had no objection to the arrangements for recording the proceedings. The Chairperson also stated that it was against the law for anyone giving evidence to refuse to take the Oath or Affirmation, to refuse to produce any document in his control required by the Tribunal, to refuse to answer any question put by the Tribunal, or to knowingly provide materially false or misleading information to the Tribunal. He pointed out that an offence may be prosecuted by the PRTB through the courts and a successful conviction could result in a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson added that the Appellant Landlords would be invited first to present their case, including the evidence of their Witness; this would be followed by an opportunity for cross-examination by the Respondent Tenants; that the Respondent Tenants would then be invited to present their case, followed by an opportunity for cross-examination by the Appellant Landlords. He said that members of the Tribunal would ask questions of both Parties from time to time. He also directed that neither Party should interrupt the other when direct evidence was being given.
The Chairperson also said that at the end of the hearing, both the Appellant Landlords and the Respondent Tenants would be given the opportunity make a final submission should they so wish.
The Chairperson reminded the Parties that that the Determination Order of the PRTB, based on the report of the hearing, would decide the issue between the parties and could be appealed to the High Court on a point of law only.
All persons giving evidence to the Tribunal were sworn.
5. Submissions of the Parties:
Appellant Landlords’ Case:
The Appellant Landlords’ legal representative submitted that the first issues in relation to the tenancy arose in August 2014 when there were two incidents of excessive noise in relation to which the Landlords had received complaints from the occupier of a neighbouring dwelling, who was also their Tenant. As a result of that the Landlords had issued an e-mail to the Respondent Tenants on 29 September 2014 referring to the lease agreement and stating that if the Landlords received any further complaints they would serve a notice giving the Tenants 14 days’ notice of the termination of the tenancy. He said that over the October/November 2014 period no further issues arose; however, on 21 December, 2014 the Tenants held another party, during the course of which the occupier of the neighbouring dwelling and witness for the Landlords e-mailed the Landlords complaining about the noise. On the basis of that complaint the Landlords sent an e-mail to the Tenants terminating the tenancy. The Landlords’ legal representative said that the Landlords agreed that this notice was technically flawed and he agreed also that the notice was not in writing. He said that the Tenants took offence at the notice and referred the matter to the PRTB. He said that shortly before the adjudication hearing set for 9 March, 2015 the Landlords withdrew the defective notice of termination. At the adjudication hearing the Landlords indicated that they intended to issue a new valid notice of termination.
The Landlords issued the new notice of termination on 14 March 2015. Their legal representative said that on the eve of St. Patrick’s Day 2015 there was another incident in the dwelling which caused serious distress to the Landlords’ witness. He said that the Landlords had been put into a difficult position in attempting to strike a balance between the rights of the Tenants and those of the occupier of the adjoining dwelling, who was also their Tenant.
Evidence of Melanie Lehmann:
Ms. Lehmann stated that she moved into the dwelling which adjoined that of the Respondent Tenants in April 2014. She said that no issues arose with the previous Tenants who were then in occupation of the dwelling. She said that when the Respondent Tenants moved in she did not think at first that there would be any difficulties. She described how she had been disturbed by the noisy activity associated with two parties in August 2014. She wrote to the Tenants and two of them subsequently called over to apologise. She told them that all she expected was some consideration.
Ms. Lehman said that on the next occasion when she heard noise and singing emanating from the dwelling she went to the rear patio area to try to get the Tenants’ attention, she could see them inside, but when she knocked on the glass they ignored her. She felt she was entitled to peaceful occupation of her own dwelling, and that was why she had raised the problem with the Landlords and had written to the Tenants to complain. Despite that she said she could still hear music from time to time and other noises such as loud conversations and the sound of doors being slammed late in the evening.
Ms. Lehman quoted from e-mails she had sent to the second-named Appellant Landlord on 12 November and 21 December, 2014 and said she was exasperated by the various incidents of noise she could hear from her bedroom, where her bed was up against the wall shared with the dwelling occupied by the Respondent Tenants. She also referred to an e-mail she had sent to the second-named Appellant Landlord on 8 April, 2015 setting out her concerns about events that occurred on the eve of the previous St. Patrick’s Day and also summarising her experience with the noise issue since the start of the tenancy of the Respondent Tenants. Asked why this e-mail had been sent on 8 April when the events outlined in it had occurred on 16 March 2015, the Ms. Lehmann said she had written and sent the e-mail at the request of the second-named Appellant Landlord re-capping her experiences with the issue of noise from the dwelling adjoining hers.
Cross-examination of Melanie Lehmann:
In response to questions from the Respondent Tenants, Ms. Lehmann agreed that it was dark on the night she tried to get the attention of the tenants from the patio, but she would not accept that it was possible that the Tenants simply did not see her. She agreed that there was a problem with closing the front door, but felt that this was not the reason it was being slammed. She said that she was not sure whether or not she could hear music on the evening of 21 December. She agreed that after she had complained about the party in August, the Respondent Tenants’ dwelling had been cleared within half an hour. In relation to two occasions when she had to take days off work as a result of lack of sleep she said she could not remember the specific events which led to her having to take that time off.
Evidence of Sheila O’Malley, second-named Appellant Landlord:
Ms. O’Malley told the Tribunal that in early September 2014 she was notified by Melanie Lehmann about the two incidents the previous month in which a lot of noise had emanated from the dwelling. She said that Ms. Lehmann needed to be able to sleep, but was disturbed by the noise from the dwelling and felt she was not being given due consideration by the Respondent Tenants. She said that she had never received any similar complaint previously and was of the view that she was under an obligation to deal with the issue. She added that this was why she had sent the e-mail to the Tenants on 29 September 2014 advising them that they would have to behave in a more reasonable manner.
Ms. O’Malley said that when she got the next complaint from Ms. Lehmann on 21 December 2014 about the Respondent Tenants having an on-going party she felt she had to act on that complaint having regard to her responsibilities to Ms. Lehmann. That was why she had accordingly issued the notice of termination of 29 December 2014 to the Respondent Tenants.
In relation to the e-mail of 8 April 2015 sent to her by Ms. Lehmann, Ms. O’Malley said that this was preceded by a phone conversation between her and Ms. Lehmann about the events that had occurred on the night before St. Patrick’s Day 2015. In the course of that conversation she said she requested Ms. Lehmann to send her an e-mail outlining what had happened on that night and generally over the course of the tenancy.
Cross-examination of Sheila O’Malley:
In response to questions from the Respondent Tenants, Ms. O’Malley said that house in which the dwelling occupied by the Respondent Tenants was located had always been divided in two, with one part occupied by four tenants and a separate granny flat occupied by one person, in this case Ms. Lehmann. She said that she had never received complaints about noise from any other neighbour. She agreed that she had never arranged a meeting to discuss the issues that had arisen, but pointed out that she had brought these to the attention of the Tenants. Ms. O’Malley said that she could not recall a phone conversation with one of the Respondent Tenants in November 2014 in relation to some issues with an ESB bill, at the end of which there had been some discussion about how to resolve the noise issues in relation to which Ms. Lehmann had complained.
Evidence of Gerard Jones, first-named Appellant Landlord:
Asked by the Tribunal if the Respondent Tenants had been notified of their alleged failure to comply with the obligations of the tenancy and of the Landlords’ entitlement to terminate the tenancy if that failure was not remedied within a reasonable, specified time, Mr. Jones referred to the e-mail sent to the Tenants on 29 September 2014 in relation to the complaints received about noise, drawing their attention to a Special Condition in their lease stating that the Landlords were at liberty to terminate the tenancy in the event of the Tenants causing nuisance to occupiers of neighbouring property, and stating that the Landlords would serve such notice if they received any further complaints.
Cross-examination of Gerard Jones:
In response to a question from the Respondent Tenants, Mr. Jones confirmed that no further warning notification was sent to the Tenants before they were issued with a further Notice of Termination on 14 March 2015. He said that the Landlords were relying on the warning notification sent on 29 September 2014 after which a notice of termination was issued on 29 December 2014 following receipt of a further complaint. He said that the Landlords had agreed that the latter notice was invalid and that the new notice had been issued on 14 March 2015 to rectify that position.
Respondent Tenants’ case:
The two Respondent Tenants present at the hearing stated that they were representing all four Respondent Tenants and were authorised to do so. They accepted that the Landlords were entitled to retain the Tenants’ deposit.
The Respondent Tenants confirmed that they moved into the dwelling in July 2014. There were no issues during the first few weeks of the tenancy, nor had issues been raised with them in relation to any of their previous tenancies. They said that in early September 2014 they had around 15 people over for a party in the dwelling. They agreed that they should have told Ms. Lehmann in advance about this. They said that the following weekend they had two people over for dinner only, not a party. There had been no further gatherings in the dwelling for the following 3 months.
The Tenants said that on 21 December, 2014 they had two friends over to the dwelling who left at around 12.30 a.m. Following that they received notice of termination giving them two weeks to vacate the dwelling. They said that on 14 March 2015 they got another written notice of termination, but this was not based on any further complaints made against them. They also said that while the first notice of termination of 29 December 2014 may have been withdrawn it was the PRTB who were notified of this; they said they were never advised by the Landlords that the first notice had been withdrawn. The Tenants said that because of the stress they had been put under and the uncertainty over the continuation of their tenancy, they sourced alternative accommodation and moved out on 20 March 2015.
The Tenants said also that on 16 March, 2015 they had one friend over to the dwelling early in the evening; they then went out and returned at around 3 a.m. They said that at one point their guest jumped up and down on the floor but was immediately told to stop by one of the Respondent Tenants. They said that this incident would have lasted for no more than about 10 seconds. They also said that apart from this brief incident noise levels on the night of 16th/17th March were not excessive.
In other evidence the Tenants said that apart from the e-mail of 29 September 2014 no effort had been made to contact them, nor had any meeting been arranged as suggested by one of the Tenants when she spoke to Ms. O’Malley, the second-named Appellant Landlord in November 2014. They also said that they had never been told that Ms. Lehmann’s bed was against the wall adjoining the dwelling they occupied. They also said that when Ms. Lehmann called round to their dwelling it was dark and that they did not ignore her; they simply didn’t see her. They also pointed out that there appeared to be defects in the wall adjoining the separate unit occupied by Ms. Lehmann.
Cross-examination of Respondent Tenants:
In response to questions from the Landlords’ legal representative the Tenants in attendance stated that they had tried to contact Ms. O’Malley, the second-named Appellant Landlord on numerous occasions, had left voice mails, but had gotten no response. They acknowledged that there had been excessive noise when they had a party in early September, with at least 15 people in the dwelling, and that this number of people would make a lot more noise than just two guests. They said however that this had happened only once in the course of their tenancy.
Closing submission on behalf of Appellant Landlords:
The Landlords’ Representative said that his clients bore no real animosity towards the Respondent Tenants. His clients had been caught between meeting their obligations towards Ms. Lehmann and respecting the rights of the Respondent Tenants. They accepted that the first notice of termination served on 29 December 2014 was invalid, and pointed out that no further action had been taken on foot of that notice. Although that notice had been withdrawn, the adjudicator following the hearing on 9 March 2015 had ruled on the underlying issues and awarded damages which the Landlords’ Representative submitted were excessive. He said that the Landlords had mentioned at the adjudication hearing that they intended to issue a new Notice of Termination to the Respondent Tenants on the basis of the warnings that had already been given to them. He also said that the Landlords had attempted to resolve the problems that had arisen but these had spiralled out of control. He submitted also that the dwelling was in a sound and reasonable condition as supported by an engineer’s report that had been submitted.
Ms. O’Malley, the second-named Appellant Landlord, added that the Landlords were not professional Landlords but she was of the view that the issues raised with them by Ms. Lehmann were not being given due consideration by the Tenants. She also said that the issue of the noise for which the Tenants were responsible had been an on-going one.
Closing submission on behalf of Respondent Tenants:
The Respondent Tenants in attendance said that as far as they were concerned the 4 Tenants were leading normal lives in the dwelling and no adequate contact had been made with them about any problems being experienced by the tenant in the adjoining dwelling, Ms. Lehmann.
The Chair thanked both parties and advised them that following the hearing the Tribunal will prepare a report and make its Determination in relation the dispute and will notify the PRTB of that Determination.

6. Matters Agreed Between the Parties
Before inviting the parties to make their submissions the Chairperson said that the Tribunal had read the documentation in relation to the case as circulated to the parties and it appeared to the Tribunal that the following factual matters in relation to the tenancy were not in dispute between the parties:
• The tenancy commenced on 13 July 2014;
• The term of the tenancy specified in the letting agreement was 12 months;
• The Tenants vacated the dwelling on 20 March 2015;
• The rent was €2000 per month;
• The Tenants did not pay the last month’s rent due on 13 March 2015;
• The Respondent Tenants paid a deposit of €2000;
• The deposit has been retained by the Appellant Landlord;
• The dwelling was re-let on 20 April 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 therefore are set out hereunder.
Finding 1:
The Tribunal finds that the Tenants of the dwelling were not in breach of their obligations under section 16(h) of the Act.

Reasons:
Section 16 (h) of the Act provides that a Tenant shall not behave within or in the vicinity of a dwelling in a way that is anti-social or allow other occupiers or visitors to a dwelling to behave in way that is anti-social – ‘behave in a way that is anti-social’ being defined in section 17 of the Act as:
(a) engaging in behaviour that constitutes the commission of an offence reasonably likely to affect directly the well-being or welfare of others.
(b) engaging in behaviour that causes or could cause fear, danger, injury, damage or loss to any person living in the dwelling concerned or in its vicinity, including violence, intimidation, coercion, harassment, obstruction or threats to any such person.
(c) engaging persistently in behaviour that prevents or interferes with the peaceful occupation of a neighbourhood dwelling by, among other, any person residing in any such dwelling in the vicinity of the rented dwelling.
There was no suggestion at the Tribunal hearing that the Tenants behaved in a way that was anti-social within the meaning of (a) or (b) above. The key question before the Tribunal was whether, contrary to (c) above and on the evidence, they engaged persistently in behaviour that prevented or interfered with the peaceful occupation by Ms. Lehmann, the witness for the Appellant Landlords, of the dwelling which adjoins the dwelling occupied by the Tenants.
In addressing that question the Tribunal has considered the noises and sounds over the course of the tenancy described by the Tenants and the description of those noises and sounds by the witness for the Appellant Landlords, Ms. Lehmann. The Tribunal accepts the evidence of the Tenants that only one party involving a significant number of people took place in the dwelling over the 9 months or so of the tenancy’s duration. The Tribunal also notes the Tenants’ acceptance that a party of this nature was not acceptable and that it was brought quickly to an end when the difficulties it was causing for Ms. Lehmann were brought to their attention. The Tribunal also notes the admission by the Respondent Tenants that there was another incident in the early hours of St. Patrick’s Day 2015, when a guest in the dwelling jumped up and down on the floor above the flat occupied by Ms. Lehmann; however, this incident was of short duration and was brought quickly to an end through the intervention of one of the Respondent Tenants. Apart from these two incidents – one early on and one late in the tenancy – the Tribunal is of the view that any noise or sounds emanating from the dwelling was no more than might be expected to arise in the course of the normal day-to-day activities of the four Tenants who were living there, including any additional noise or sounds that could have arisen when there were small numbers of guests present. The fact that Ms. Lehmann could overhear conversations, doors closing, people walking up or down stairs or other sounds of a similar nature may well have arisen from the fact that the unit she occupied and the adjoining dwelling occupied by the Respondent Tenants were contained within the same older terraced house where sounds are likely to carry from one part of the building to the other.
On the whole, therefore, the Tribunal considers that the overall pattern of the Tenants’ behaviour over the course of the tenancy could not be categorised as persistent engagement in behaviour that prevented or interfered with the Ms. Lehmann’s peaceful occupation of her adjoining dwelling, within the meaning set out in section 17(I)(c) of the Act.
Finding 2
The Notice of Termination served on the Tenants on 14 March, 2015 was invalid.
Reasons:
By the time this notice was served the Respondent Tenants were over 8 months into a 12-month fixed term tenancy contract which was binding on both sides subject to the terms of the contract. By virtue of its being of longer than six months duration the tenancy had also become a Part 4 tenancy under the Residential Tenancies Act, 2004. In such circumstances the Appellant Landlords would only be entitled to terminate the tenancy on the grounds that the Tenants had failed to comply with their obligations in relation to the tenancy.
The Notice of Termination dated 14 March 2015 stated that the tenancy was being terminated on the grounds that the Tenants had, in breach of Clause 5(e) Special Condition of the Lease dated 23 June 2014 and made between the Landlords of the one part and the tenants of the other part, repeatedly caused a nuisance to occupiers of neighbouring property.
Having found that the Respondent Tenants did not engage in anti-social behaviour within the meaning to the Act of 2004 the Tribunal further finds that the Tenants were not in breach of the foregoing condition of the Lease between them and the Appellant Landlords. In those circumstances the Notice of Termination served by the Appellant Landlords on 14 March 2015, while served in good faith, is found to have been invalid.
Finding 3
The Tribunal finds that the Appellant Landlords were in breach of their obligations under section 58 of the Act.
Reasons:
Under sub-section (1) of section 58 of the Act, a tenancy may not be terminated by a Landlord or a Tenant by means of a notice of forfeiture, a re-entry or any other process or procedure not provided for under the Act. Furthermore under the provisions of sub-section (1)(c) of section 86 of the Act and subject to the provisions of sub-section (2) of section 86, a termination of a tenancy may not be effected pending the determination of a dispute that has been referred to the PRTB.
In seeking to terminate the tenancy of the Respondent Tenants on grounds for which there was no foundation the Appellant Landlords were in breach of their obligations under section 58. Furthermore, while the Respondent Tenants vacated the dwelling on 20 March 2015, the Tribunal is satisfied that it was not their wish to leave, but that they were compelled to do so as a result of the pressure put on them by the Appellant Landlords.
Finding 4
Finding: The Tribunal finds that the Respondent Tenants are entitled to damages in the amount of €2,000 in respect of the termination of the tenancy in a manner contrary to the provisions of section 58 of the Act.
Reasons:
The Tribunal is satisfied, on the evidence before it, that the Respondent Tenants suffered distress, expense and inconvenience as a result of the termination of the tenancy by the Appellant Landlords in a manner contrary to the provisions of section 58 of Act. The Tribunal, having taken into account the manner in which the tenancy was terminated considers that the appropriate quantum of damages to award in the circumstances of this case is €2,000.
In exercise of its powers, therefore, under section sub-section (2)(d) of section 115 of the Act the Tribunal directs that damages in the amount of €2000 in respect of the termination of the tenancy in a manner contrary to the provisions of section 58 of the Act shall be paid by the Appellant Landlords to the Respondent Tenants.
In assessing the extent of distress, expense and inconvenience suffered by the Respondent Tenants for the purposes of determining the appropriate quantum of damages to be awarded the Tribunal has taken into account the manner in which their fixed term tenancy was brought to an abrupt end while they had an expectation of remaining in the dwelling for at least another 3 months, or longer if they exercised their rights under Part 4 of the Act. The Tribunal is also of the view that the termination of the tenancy was pre-emptive in nature, in that the Appellant Landlords sought to terminate it before pursuing other possibilities to meet their duty to their other Tenant in the adjoining dwelling. The Tribunal sees no reason for example why a meeting could not have been arranged between the Respondent Tenants and the tenant in the adjoining dwelling to work out a mutually acceptable solution to the issues raised by the latter in relation to the sounds she could overhear.
8. Determination:
Tribunal Reference TR0415-001132
In the matter of Gerard Jones, Shelia O Malley (Landlord) and Eimear Doody, Jayne Doherty, Elaine Fallon, Cornelia Carey (Tenant) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Notice of Termination served on 19 April, 2015, in respect of the tenancy of the dwelling at 18 Merton Avenue, Dublin 8, is invalid.
2. The Appellant Landlords shall pay the sum of €2,000.00 to the Respondent Tenants,
within 21 days of the date of issue of the Determination Order, being damages to compensate the Respondent Tenants for the consequences of the breach of the Landlords’ obligations in serving an invalid notice of termination and seeking to terminate the tenancy in a manner contrary to the provisions of section 58 of the Act, in respect of the tenancy of the above dwelling.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 17 October, 2015.
Signed:

Chairperson
For and on behalf of the Tribunal

 

 

Oglesby v Miszkiel

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0116-001564 / Case Ref No: 1015-22046
Appellant Landlord: Erica Oglesby
Respondent Tenant: Ewa Miszkiel, Tomasz Miszkiel
Address of Rented Dwelling: 21 Mayeston Lawn, Mayeston Hall, Finglas , Dublin
11,
Tribunal: Nesta Kelly (Chairperson)
John Tiernan, Mary Doyle
Venue: Tribunal Room, PRTB, O’Connell Bridge House,
D’Olier Street, Dublin 2
Date & time of Hearing: 07 March 2016 at 10:30
Attendees: Erin Fitzgerald (Appellant Landlords
Representative)
Tomasz Miszkiel (Respondent Tenant)
Ewa Miszkiel (Respondent Tenant)
Erin Fitzgerald (Representative)
In Attendance: DTI Stenographer/Loggers
1. Background:
On 30 October 2015 the Tenant made an application to the Private Residential Tenancies
Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 16 December 2015. The Adjudicator determined that:
(1) The Respondent Landlord shall pay the total sum of €2,246.75 to the
Applicant Tenants, within 14 days of the date of issue of the Order, comprised of
€596.75 in refunded rent and €1,650, the entire of the unjustifiably retained security
deposit, in respect of the tenancy of the dwelling at 21 Mayeston Lawn, Mayestown
Hall, Finglas Dublin 11.
Subsequently the following appeals were received from the Landlord on 25 January 2016.
The grounds of the appeal are Breach of tenant obligations and Invalid Notice of
termination. The appeal was approved by the Board on 26 January 2016.
The PRTB constituted a Tenancy Tribunal and appointed Nesta Kelly, John Tiernan,
Mary Doyle as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Nesta Kelly 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 07 March 2016 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:
1. PRTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present her case first; that
there would be an opportunity for cross-examination by the Respondents; that the
Respondents would then be invited to present their case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and she reminded the Parties that
knowingly providing false or misleading statements or information to the Tribunal was an
offence punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The Parties were then sworn in.
5. Submissions of the Parties:
Appellant Landlord’s Case:
The Landlords representative said that due to the Tenants assigning the Lease on 29th
September 2015 to new tenants after they had decided to leave a 12 month fixed term
tenancy which commenced on 10th September 2015; there was a shortfall in the rent and
that the Tenants should not be allowed a full refund of rent as allowed by the Adjudicator;
as the new tenants only started paying rent from 3rd October 2015, despite the fact that
the new Lease commenced on 29th September 2015. She said that there was no
problem in repaying the full deposit in the sum of €1,650, but she wanted to claim for fees
incurred as a result of the tenants breaking the Lease and thus involving the checking of
some references regarding the new tenants, and preparation of new contracts; the
amount as verified in the PRTB file was €490.77.
She further said that when the Tenants complained about a fault with the heating system
and washing machine these were dealt with forthwith and it was her view that the tenants
had found a cheaper property and were only using these alleged faults to try to get out of
the Lease. She said that she was unaware that they had returned to their previous
address on 16th September as that was the day they had complained about various
issues at the dwelling.
Respondent Tenants Case:
They said that following a viewing of the dwelling, they paid a month’s advance rent of
€1,650 and a deposit of the same amount on 1st September 2015 and signed the
contract on 10th September 2015 when they obtained the keys. They said that on 16th
September 2015 they informed the Landlords Agent that there were problems with the
heating system and washing machine and that they wished to vacate the dwelling In reply
to questioning by the Tribunal they said that on 16th September 2015 they had moved
back to their previous dwelling at a rent of €1,380 monthly. They told the agent that they
were leaving and inserted adverts on 2 websites to find alternative tenants. They
succeeded, in finding new tenants, but agreed that in respect of one of these prospective
tenants, there was a delay in obtaining the required references. They said that they had
overpaid rent up to 9th October 2015 as the new tenants had signed a Lease from 29th
September. They further wished to claim damages in respect of the deposit retention a
laid out in their written submission. They accepted that they did not inform the Landlord
that they had moved back to their old address on 16th September; which was the day
they had complained about problems in the dwelling. They said that the Landlord did not
need to use an agent and that they should not have to pay the extra fees incurred in
relation to the assignment of the Lease.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The Tenancy commenced on 10th September 2015 at a monthly rent of €1,650
2. A deposit of €1,650 was paid which is retained by the Landlord
3. The Tenancy terminated on 28th September 2015 when the keys were returned.
4. The Tenants had paid rent up and inclusive of 9th October 2015.
7. Findings and Reasons:
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 finding and reasons thereof are set out
hereunder.
7.1 Finding
The Tribunal finds that the Appellant Landlord is in breach of Section 12(1)(d) of the Act
in that she did not promptly repay the deposit
Reason:
When the Tenants vacated the dwelling on 28th September 2015 there were no arrears
of rent or damage beyond normal wear and tear to justify the retention of this deposit
under subsection 4 of Section 12 of the Act.
7.2 Finding:
The Tribunal finds that due to the Tenants assigning their Lease, the Landlord was put to
extra expense in verifying certain references of the new tenants and preparing new
contracts, and therefore allows the Landlords claim for fees of €490.77 in this respect.
Reason:
Section 115 of the Act applies in this regard. The Tribunal finds that on the Tenants own
evidence, they returned to their previous dwelling within 6 days of signing a 12 month
fixed term tenancy and despite the successful assignment of the Lease, the Landlord
incurred costs and inconvenience in respect of this new tenancy. The Tribunal accepts
the evidence that the sum of €490.77 was expended by the Landlord in procurement of
her Agents’ services to administer the changeover on foot of the assignment of the
tenancy.
7.3 Finding:
The Tribunal finds that the Tenants claim in respect of overpayment of rent by an amount
equivalent of rent for 11 days is partly upheld. The Tribunal awards the sum of €379.75 to
the Respondent Tenants in this regard.
Reason:
The Tribunal accepts the Landlords submission that the first payment of rent was made
on 3rd October 2015, despite the fact that the new Lease commenced on 29th
September 2015. The Tribunal also accepts the evidence that there was a delay in
obtaining the required references in respect of at least one of the new tenants.
The Tribunal finds that that the Landlord suffered loss of 4 extra days from 29th
September 2015 to 2nd October inclusive and that the rent in respect of those days
should be deducted from the Tenants claim in respect of 11 days over- payment of rent
and thus deducts this amount from the Tenants claim. The Tribunal assess the amount to
be refunded as €379.75 based on a daily sum of €54.25
7.4 Finding:
The Tribunal does not award damages to the Respondent Tenants in respect of the
Landlords retention of the deposit.
Reason:
The Tribunal finds that on the Tenants own evidence; they returned to their previous
dwelling within 6 days of signing a 12 month fixed term tenancy and despite the
assignment of the Lease, the Landlord incurred costs in respect of this new tenancy. The
Tribunal notes the Tenants own evidence that they reported a number of alleged faults in
the dwelling on the same day as they had vacated the dwelling, but however they did not
inform the agent that they had vacated the said dwelling. Furthermore, the Tribunal
considers that the Tenants did not adduce sufficient evidence to establish and quantify
losses to support their claim in this respect.
8. Determination:
Tribunal Reference TR0116-001564
In the matter of erica oglesby (Landlord) and Ewa Miszkiel, Tomasz Miszkiel
(Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The Respondent Landlord shall pay the total sumof €1,538.98 to the Appellant tenants
within 14 days of the date of issue of the Order comprised of the return of the
unjustifiably retained deposit of €1,650 plus a rent refund of €379,75 less costs of
€490.77 incurred by the Landlord in respect of the tenancy of the dwelling at 21
Mayeston Lawn,Mayeston Hall,Finglas,Dublin 11.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 11 March 2016.
Signed:
Nesta KellyChairperson
For and on behalf of the Tribunal.

 

 

O’Muircheartaigh v Loughnane

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0315-001097 / Case Ref No: 1014-15066
Appellant Tenant: Colm O’Muircheartaigh
Respondent Landlord: Jarlath Loughnane
Address of Rented Dwelling: 30 Beechwood Park,Ballybane, Co. Galway H91NXR9
Tribunal: Gene Feighery (Chairperson)
Finian Matthews, John Keaney
Venue: Executive Lounge, Hotel Meyrick, Eyre Square, Galway
Date & time of Hearing: 21 July 2015 at 11:00
Attendees: Colm O’Muircheartaigh, Appellant Tenant
Seán Ó Muircheartaigh, Appellant Tenant’s Representative.

Jarlath Loughnane, Respondent Landlord
In Attendance: Gwen Malone Stenographers
1. Background:
On 30 October 2014 the Tenant, Colm Ó Muircheartaigh made an application to the Private Residential Tenancies Board (“the PRTB”) pursuant to Section 76 of the Act. The matter was referred to Mediation which took place over a period of time and ultimately resulted in a statement of mediation issued by the Mediator on 6 March 2015 stating that no agreement had been reached by the parties.
Subsequently the Tenant applied to have the matters in dispute between the parties raised at a Tribunal Hearing which application was received on 24 March 2015 and approved by the Board of the PRTB on 10 April 2015.
The PRTB constituted a Tenancy Tribunal and appointed Gene Feighery, Finian Matthews and John Keaney 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 in 15 June 2015 of the constitution of the Tribunal and provided with details of the date, time and venue set for the hearing.
On 21 July 2015 the Tribunal convened a hearing at the Executive Lounge, Hotel Meyrick, Eyre Square, Galway.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties 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 possible; that the person who referred the dispute to the Tribunal (the Appellant 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 de novo hearing of the case 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 was recorded by the official stenographer present and reminded the Parties that to knowingly provide 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.
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 Seán Ó Muircheartaigh (Tenant’s Representative)
Speaking on behalf of the Appellant Tenant, the Representative stated that the Tenant had been ill over the years and that he wanted to be involved with students of his own age. He said that at all times he supported the Appellant Tenant in his decision to move into the dwelling. He said that together they had sourced the dwelling from an advertisement on a property website. The property within which the dwelling was located was advertised as accommodating 8 people, having three bathrooms and costing €600 per month. A copy of the advertisement from which they said the dwelling was sourced was submitted in evidence to the Tribunal in support of this claim. He said that himself and the Appellant Tenant visited the dwelling, inspected it, found it to be satisfactory and that the contractual lease was signed between the parties on 11 August 2014 with a commencement date for the tenancy on 1 September 2014. The lease was submitted in evidence in support of this claim.
He said that subsequently, the Appellant Tenant asked the Respondent Landlord if he could move his belongings into the dwelling before the tenancy commenced. He confirmed that the Appellant Tenant was given the keys and the right to occupy the dwelling by the Respondent Landlord with effect from 18 August 2014 but that having spent one night in occupation the Appellant Tenant found the house to be too lonely, and he left. He said he resumed occupation on 1 September 2014 when all the other students started to move in.
The Appellant Tenant’s Representative stated that the dwelling which was advertised as accommodating 8 students was overcrowded with 13 students living there. Consequently this placed intolerable pressure on bathroom and cooking facilities and the Appellant Tenant found it difficult to study. In addition he said that there was only one exit door and in his opinion the dwelling was a fire hazard.
He said that the Appellant Tenant gave the Respondent Landlord oral notice that he was was terminating the tenancy and would be leaving on 17th September 2014. He said that he was aware that contractually this could result in a financial penalty unless they found a replacement tenant so they advertised his tenancy. He said they received many calls from students willing to replace the Appellant Tenant, but that when they called to the dwelling, the Respondent Landlord had already found a replacement tenant who had moved into the Appellant Tenant’s room.
He said that despite this arrangement, the Landlord only offered to return €180.26 of the deposit and/or a portion of his monthly rent which was paid in advance but without any breakdown and this offer was rejected. He said that the Respondent Landlord claimed €170 for utilities in circumstances where the Appellant Tenant was only in occupation for one night before the contractual tenancy commenced. He said that the Respondent Landlord had breached a number of his obligations, including not providing the Appellant Tenant with a rent book and failing to register the tenancy with the PRTB.
The Appellant Tenant’s Representative stated that he had legal training and that he understood the binding nature of a contractual arrangement. He said that his contract with the Respondent Landlord theoretically spanned the period from 1 September 2014 to end May 2015, that rent and other outgoings were only due from 1st September 2014 as there was no contractual obligation prior to that date.
Upon cross examinqtion by the Respondent Landlord, the Appellant Tenant and his Representative confirmed that the advertisement submitted in evidence to the Tribunal was not the advertisement for the Tenancy. It did not cover the period of the Tenancy, the contact telephone number on the advertisement was not that of the Respondent Landlord and was for a holiday letting. The Appellant Tenant and his Representative gave contradictory evidence of where they sourced the Respondent Landlord’s contact details, one stating that it was from the student’s college or the Respondent Landlord’s son and the other stating that it was from the internet.
When questioned further about occupancy of the dwelling before 1 September 2014, the Appellant Tenant initially stated that he had stayed in the dwelling for one night, but on reflection conceded that it may have been for more than one night and that he had exercised his entitlement to have friends and visitors to the dwelling during this period.
In response to a question regarding the partial return of the security deposit in the sum of €180.26 the Appellant Tenant stated that he had not rejected the offer but that it had been rejected by his Representative.
Respondent Landlord’s Case:
Evidence of Jarlath Loughnane:
The Respondent Landlord refuted a number of statements made by the Appellant Tenant and his Representative. He stated that the tenancy was in fact registered. He pointed out inconsistencies in the Appellant Tenant’s assertion that there were 11 students in the dwelling, and later on his assertion that there were 13 students in the dwelling. He further stated that the advertisement submitted in evidence to the Tribunal by the Appellant Tenant did not relate to the tenancy, the subject of the dispute. He said the contact details on the advertisement and the monthly rental payment were inconsistent with the tenancy. He said that the dwelling has three access/egress doors on the ground floor and he rejected the Appellant Tenant Representative’s personal assessment that it was a fire hazard.
He said that the Appellant Tenant and his Representative were the first people to view the dwelling on 11 August 2014. He said they inspected the dwelling, found it to be satisfactory and entered into a signed tenancy agreement for the period of the academic year commencing on 1 September 2014 to end of May 2015. He said that shortly afterwards, the Appellant Tenant telephoned him and told him he had problems at home and he put him under pressure to allow him to move into the dwelling immediately. He said he acceded to this request on the clear understanding with the Appellant Tenant that he paid rent, utilities and broadband for the period. He said that all the services were functioning and available to the Appellant Tenant and one other occupier of an adjoining dwelling sharing those services during the period of August 2014. He said that renting the dwelling is a business and he is not a benevolent society.
The Respondent Landlord said that the the Appellant Tenant moved into the dwelling on 15 August 2014 and he remained in occupation of the dwelling until the Appellant Tenant gave him verbal notice that he was terminating the tenancy on 17 September 2014. He said the Appellant Tenant informed him that he was changing his university course to Limerick where he would be living with relatives. The Respondent Landlord stated that he told the Appellant Tenant that if he terminated his tenancy prematurely, he could either find a replacement tenant or that he was liable for any loss of rent suffered by him. He said that the Appellant Tenant never referred any tenants on to him, so he sourced his own replacement tenant and he mitigated his loss by offering the Appellant Tenant’s terminated tenancy to another student who commenced the new tenancy two days following the Appellant Tenant’s departure.
In relation to payments, the Respondent Landlord referred the Tribunal to the signed lease agreement wherein it stated that the rental payment was €350 per month in advance and that a security deposit of €350 was paid. He further referred to clause 4 of the contract stating that the tenant was responsible for ESB, Broadband, NTL, Property Tax and TV Licence. He said that the Appellant Tenant was also contractually obliged to pay refuse charges and to issue the Landlord with 28 days notice in writing if he wished to terminate the tenancy within the period between 1 September 2014 to 21 May 2015. Otherwise he said the Appellant Tenant was liable for loss of rent. He confirmed that the Tenant returned the keys to him on 17 September 2014 when he vacated the dwelling.
The Respondent Landlord stated that he has always been prepared to return a portion of the Appellant Tenant’s security deposit in the sum of €180.26 i.e. €350 less payments which he considered were lawfully withheld by him, however the offer had been rejected.
He said he calculated the sum due to him by dividing the monthly rental payment for August of €350 at a daily rate of €11.29 per day for 17 days during which the Tenant was in occupation resulting in a rental figure due for that period of €191.93.
He further calculated the monthly rental for September of €350 at a daily rate of €11.66 during which the tenant was in occupation resulting in a rental figure of €198.33.
Therefore he calculates that €191.93 and €198.33 results in a rental sum owed to him by the Appellant Tenant of €390.26. He deducted rental payment in advance of €350 resulting in a sum due from the Tenant of €40.26.
He said that further deductions related to Broadband charges for the period of 34 days as €24.50, (this is a fixed monthly charge of €49 divided between two tenants in adjoining dwellings) plus refuse collection of €13.50 per month and ESB charges of €91.48. He said he divided the utility bills proportionately between the Tenants in the dwelling and an adjoining dwelling with a separate entrance and that the Appellant Tenant was always aware of this and he agreed to this arrangement because he was in such a hurry to move into the dwelling. He acknowledged that he had failed to submit meter readings or bills to the Tribunal in support of this claim.
He said that if he had not found a replacement tenant and mitigated his loss, the Tenant could have been liable for more rent as it would not be fair on his fellow tenants to take on his responsibilities.
When questioned about the basis for his calculation for ESB charges, the Respondent Landlord said that he based it on the ESB bill received for the period 13th September 2014 to18 November 2014 which was for a sum of €306.76 He accepted that this was for a period when 13 students occupied the dwelling. He also had a bill for the period for 18th July 2014 to 12th September 2014 from which he said he could calculate the Appellant Tenant’s liability.
He confirmed to the Tribunal that he is not seeking the two days loss of rent between the period when the Appellant Tenant vacated the dwelling and the replacement tenant moved in.
6. Matters Agreed Between the Parties
The Rental payment was €350 per month paid in advance.
The Security of €350 was paid by the Tenant at the commencement of the tenancy.
The Tenancy terminated on 18 September 2014.
The Landlord has retained the entire of the security deposit.
7. Findings and Reasons:
Finding 1.
The Tribunal finds that the tenancy of the dwelling commenced on 15 August 2014.

Reason:
The Respondent Landlord asserted that the Appellant Tenant’s tenancy actually commenced on 15 August 2014 at the request of the Appellant Tenant. This was disputed by the Appellant Tenant. The Appellant Tenant’s representative conceded that the Appellant Tenant had a right to occupy the dwelling with effect from 18 August 2014. The Appellant tenant disagreed with his representative on this point. It was disputed as to how often the Appellant Tenant stayed at the dwelling, but it was accepted that he moved his belongings into the dwelling, took up occupancy of the dwelling, and stayed in the dwelling overnight on at least one occasion.
In view of the inconsistency of the Appellant Tenant’s evidence the tribunal finds that the tenancy commenced on 15 August 2015.
Finding 2.
The Tribunal finds that the Appellant Tenant is liable for rental payments and outgoings for the dwelling during his period of occupation from 15 August 2014 to 17 September 2014 when he vacated the dwelling.
Reason: The Tribunal prefers the evidence of the Respondent Landlord in relation to the oral arrangement for payment of rent and outgoings for the dwelling for the 17 day period of August in circumstances where the Appellant Tenant cannot have reasonably expected to be accommodated free of charge. Furthermore clause 4 of the signed lease agreement on 11 August clearly outlines the Appellant Tenant’s responsibilities in this regard.
Nevertheless, the Tribunal rejects the Landlord’s calculations in favour of a more precise and proportionate division of costs wherein the 17 days rent and outgoings for August 2014 are divided between two tenants, and the 17 days rent and outgoings for 17 days in September are divided between 13 tenants. .
The Tribunal calculates that the portion of the Appellant Tenant’s security deposit unlawfully withheld by the Respondent Landlord is as follows:
Rental Payment €350 per month:
Calculated for the 34 day period of occupation by Tenant:
17 days in August
€350 x 17/31 days = €191.93
17 days in September
€350 x 17/30 days = €198.33
Total = €390.26
Less rent paid €350.00
Balance rent Due €40.26
ESB Utility:
Calculated for 34 day period of occupation by Tenant
i.e. 17 days in August 2014 divided by two Tenants and for 17 days in September 2014 divided by 13 Tenants and based on the ESB bill of €306.76 (which the Tribunal considered reasonable in the absence of any other satisfactory evidence of the actual charge for the period concerned) for the period 13 September 2014 to 18 November 2014 (67 days)
€306.76 x 17/67 days/2 = €38.92
€306.76 x 17/67 days/13 = €5.98
Total ESB €44.90
Refuse Collection €13.50 per month:
Calculated for 34 day period of occupation
i.e. 17 days in August 2014 divided by two Tenants and for 17 days in September 2014 divided by 13 Tenants = €4.28
Broadband Fixed Charge of €49 per month:
Calculated for 34 day period of occupation by Tenant
i.e. 17 days in August divided by two Tenants and for 17 days in September 2014 divided by 13 Tenants = €15.36
Total of rent and outgoings = €104.80
Less : €350 security deposit paid = €245.20.
Amount of security deposit to be returned by the Respondent Landlord is €245.20
Finding 3.
The Tribunal finds that the Appellant Tenant is in breach of his obligations under the Act arising from his failure to issue the Respondent Landlord with the requisite written notice of termination.
Reason: It is not disputed by either party that the required written notice, terminating a fixed term tenancy was not issued by the Appellant Tenant to the Respondent Landlord. However the Respondent Landlord mitigated his loss by replacing the Appellant Tenant with another student two days following which the Appellant Tenant vacated and gave up possession of the dwelling. The Tribunal does not award costs against the Tenant in this case because the Respondent Landlord stated that he did not wish to pursue the loss of rent for the two days.
8. Determination:
Tribunal Reference TR0315-001097
In the matter of Colm O’Muircheartaigh (Tenant) and Jarlath Loughnane (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:

The Respondent Landlord shall return the sum of €245.20 to the Appellant Tenant within 28 days of the issue of this order, being the unjustifiably retained portion of the security deposit of €350 in respect of the tenancy of the dwelling at 30 Beechwood Park, Ballybane, Co. Galway.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 24/07/2015.
Signed:

Gene Feighery Chairperson
For and on behalf of the Tribunal

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001474 / Case Ref No: 1015-21384
Appellant Tenant: Adrian O Connor, Jillian O’Connor
Respondent Landlord: Leann Kenny, Michael Kenny
Address of Rented Dwelling: 22 Glenoaks Drive, Glenconnor, Clonmel ,
Tipperary, E91K7R2
Tribunal: Mary Doyle (Chairperson)
John Tiernan, John Keaney
Venue: Pegasus 3, Clarion Hotel, Steamboat Quay,
Limerick
Date & time of Hearing: 19 February 2016 at 2:30
Attendees: Michael Kenny (Respondent Landlord)
Adrian O’Connor (Appellant Tenant)
In Attendance: DTI LLC Stenographers
1. Background:
On 02 October 2015 the Landlord made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred
to an Adjudication which took place on 02 November 2015. The Adjudicator determined
that:
1. The Respondent/Applicant Tenants and all persons residing in the above
dwelling shall vacate and give up possession of the above dwelling within 28 days of
the date of issue of this Order.
2. The Respondent/Applicant Tenants shall pay the sum of €1,173.97 to the
Applicant/Respondent Landlords, within 7 days of the date of issue of this Order,
being rent arrears in the sum of €1,573.97 minus the sum of €400 being damages for
breach of landlord obligations under s. 12(1)(a) of the Residential Tenancies Act
2004 in failing to allow the Respondent/Applicant Tenants peaceful enjoyment in
respect of the tenancy of the above dwelling.
3. The Respondent/Applicant Tenants shall also pay any further rent
outstanding from 02 November 2015, at the rate of €750 per month or proportionate
part thereof at the rate of €24.65 per day, unless lawfully varied, and any other
charges as set out in the terms of the tenancy agreement for each month or part
thereof, until such time as he/she/they vacates the above dwelling.
4. The Applicant/Respondent Landlords shall refund the entire of the security
deposit of €750 to the Respondent/Applicant Tenants, upon the
Respondent/Applicant Tenants vacating and giving up possession of the above
dwelling, less any amounts properly withheld in accordance with the provisions of the
Act.
Subsequently the following appeal was received from the Tenant on 27 November 2015.
The grounds of the appeal were Standard and maintenance of dwelling and Other. The
appeal was approved by the Board on 09 December 2015.
The PRTB constituted a Tenancy Tribunal and appointed Mary Doyle, John Tiernan, John
Keaney as Tribunal members pursuant to Section 102 and 103 of the Act and appointed
Mary Doyle to be the chairperson of the Tribunal (“the Chairperson”).
On 16 December 2015 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 12 January 2016 the Tribunal convened a hearing at Limerick City Council offices at
Merchants Quay, Limerick City.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant Tenant) would be invited to present their case
first; that there would be an opportunity for cross-examination by the Respondent
Landlord; that the Respondent Landlord would then be invited to present their case, and
that there would be an opportunity for cross-examination by the Appellant Tenant. The
Chairperson explained that following this, both parties would be given an opportunity to
make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and she reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of €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.
The Chairperson proceeded to have the parties giving evidence sworn.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Tenant stated that he had moved to Clonmel with his wife and two children to be
near a special school for his autistic son. Whilst viewing the property they discussed with
the Landlord the possibility of replacing the furniture. Two weeks after they moved in they
asked the Landlord to replace the sofa. It was agreed between the parties that the
tenants would source the furniture and subject to agreement on the price the furniture
could be ordered. The tenants found the furniture and it was delivered and the old
furniture removed. The tenants deducted the €350 paid for the furniture from the following
month’s rent. The Tenant then stated that the oven never worked. He contacted the
Landlord in early July and he stated that he did not receive a new oven until 5th or 6th.
August. When the replacement oven was installed the installer left the old oven outside
and he was very annoyed that it was not removed. He then stated that the stove top
never worked and that he asked the Landlord to replace this also. When he contacted
the Landlord he stated that the Landlord said that he would not replace the stove top, that
he would have to live with it and that he was abusive and angry on the phone.
When the Tenant was asked about the rent by the Tribunal he acknowledged that he was
in arrears at that stage but that he was withholding the rent as he did not have a full
operating kitchen. He stated that they could not live there if the Landlord would not do
repairs. They emailed the Landlord and advised him that they were moving out on 30th.
September 2015. The Appellant Tenant confirmed that he did not pay rent for the months
of September 2015 through to the 11th December 2015. He said that he was very angry
at the time.
The Tenant gave further evidence that the washing machine stopped working in late
August but he did not inform the Landlord as the Landlord had previously stated that he
would do no further repairs.
On 29th September 2015 he emailed the Landlord and told him he was not moving out
until the Landlord paid him €1,290 in compensation for having no stove top and washing
machine. He informed the Tribunal that he had come to this figure estimating that he
spent roughly €35 per day for eating out and getting takeaway food for the month of
September and for having to get laundry done at €85 per bag as the washing machine
was not working. He provided no invoices or receipts for these amounts other than an
unsigned letter asserting that the Tenant had paid 75.00 per week to a third party for
laundry services.
The Appellant Tenant said that in his opinion he owes the Respondent Landlord €2,044
in rent arrears to the date of vacation of the dwelling.
The Tenant further stated that the Landlord entered the property on 4th. October 2015
without consent and that he pulled up lino in the hall and kitchen and had started to paint
a radiator in the hall when the Landlord returned. The Tenant asked the Landlord to
leave as his autistic son was due home and he did not want him upset.
Respondent Landlord’s Case:
The Landlord stated that the relationship was cordial at the beginning of the tenancy as
can be seen by emails between the parties and that the furniture and oven were replaced
promptly. He stated that he let the tenants pick the furniture that would be suitable for
their needs and that there was no problem whatsoever about replacing the sofa. With
regard to the replacement of the oven he stated that he asked the Tenants to email the
make and model of the oven to him to order a replacement. He stated that it took the
tenants seven weeks to get this information to him. It was obvious that there was no
urgency at this stage on the Tenant’s part.
He categorically denied being asked to replace the stove top and had a very clear
memory of the telephone call he received in mid August from the Tenant about the stove
top. The conversation centred around how the next month’s rent would be paid and that
the markings on the stove top had eroded or faded away. The Landlord suggested to the
tenant that he put his own markings on the stove top by way of etching or markers.
The Landlord stated that he felt that the exaggerated claims from the tenant about urine
smells and stove top not working were to distract from the fact that the tenants were in
rent arrears. He stated that it was obvious that he would replace any thing that was not
working as he had already replaced the sofa and oven in a timely fashion. Not once was
he asked to replace the stove top. There were no complaints from the Tenants until rent
arrears had arisen. When asked by the Tribunal what rent was outstanding the Landlord
stated that the rent for September, October, November and 11 days in December were
not paid. This amounts to €2,545.80
With regard to Tenant moving out the Landlord stated that at 1.40 am on the 30th.
September he got an email from the tenants stating that they were not moving out. He
texted the tenants to say that he would be inspecting on 4th. October 2015 and he got no
reply to this text. He entered the house on the 4th October and lifted up lino in the
kitchen and hall. He accepted now that he should not have entered the house without the
consent of the Tenants. He left the house at the request of the Tenant and never went
back until a neighbour told him that the tenants had moved out on 11th. December 2015.
He further stated that the stove top was working when he tested it then and that the
washing machine had a sock caught in the filter. He further stated that the washing
machine was working perfectly and that he had since sold it on.
The Landlord brought up the issue of the granting of an adjournment to the Tenants for a
hearing that had been due to take place on 12 January 2016. He stated that the tenant
had sought an adjournment at 11.31 on the morning of the hearing stating that he had not
received the relevant papers. He stated that the Tenants had given false information to
the Tribunal in stating that they were homeless and could not provide an address. He
stated that he was out of pocket for a day’s wages and travel cost from Galway to
Limerick and back. He asked the Tribunal to award costs to him for the adjournment.
When the Tribunal asked the Tenant why he had not attended on 12 January 2016 and
why he had sought and adjournment at such a late stage he said his child was sick.
6. Matters Agreed Between the Parties
1 Rent was €750 per month
2 Deposit of €750 was paid
3 Tenancy commenced on 29 May 2015
4 Tenancy ended on 11 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 therefore are set out
hereunder.
Finding 1: The Respondent Landlords were not in breach of their obligations under
Section (1) (b) (ii) in relation to repairs
.
Reason:
The sofa and oven were replaced in a timely fashion and the Tribunal preferred the
evidence of the Landlord with regard to the stove top. The Landlord could not be held
responsible for the washing machine as the Tenant acknowledged that he did not inform
the Landlord that it was not working.
Finding 2: The Respondent Landlords breached their obligation pursuant to section
12(1)(a) of the Residential Tenancies Act, 2004 by entering the premises without consent
and removing lino in the hall and kitchen and painting a radiator in the hall. The Appellant
Tenants are entitled to damages in the sum of €500 as a consequence of the distress
caused through the said breach.
Reason:
The Landlord agreed at the Tribunal hearing that he should not have entered the property
without consent.
Finding 3:
The Tribunal finds that the Respondent Landlords are entitled to damages for the
consequences of the Appellant Tenants’ breach of obligations through withholding of rent
and for their failure to vacate the dwelling on the agreed date. The Tribunal awards the
sum of €500 to the Respondent Landlords in damages arising as a consequence of the
said breach and failure.
Reason:
Under the provisions of s.16 (a) of the Act a tenant is obliged to pay rent on the date it
falls due and the evidence of both parties demonstrates that this was not done. The
Respondent Landlord gave evidence of the distress that this caused. The Tribunal has
also considered the consequences of worry and distress caused to the Respondent
Landlords through the failure on the part of the Appellant Tenants to vacate the dwelling
on the agreed date of 30th September 2015.
Finding 4
The Tribunal finds that the Landlord is entitled to succeed in his claim for a day’s wages
and expenses for the hearing attended on 12 January 2016 and accordingly the Tribunal
awards him €230 being €200 in respect of one day’s wages and €30 for diesel for his
journey from Galway to Limerick and back.
Reason:
The Tribunal has noted that the Tenant offered two different explanations for his request
for an adjournment and furthermore that his application at 11.31am on the morning of the
hearing was at very short notice. On 12 January 2016, the date of the adjourned hearing,
he pleaded that he had not received the notification due to his changed address whereas
at the Tribunal hearing on 19 February 2016 he pleaded that his son had been ill all over
the Christmas period. Whilst the Tribunal has considered the possibility that both
situations could be factual the Tribunal also notes that the tenant had been duly
instructed through PRTB correspondence to keep the PRTB informed of his up to date
contact details and that he failed to do so. The Tribunal also notes the testimony of the
Appellant Tenant that his child was ill all over Christmas and that therefore the PRTB
could have been forewarned of the possible adjournment request earlier. On balance
therefore the Tribunal considers that the Respondent Landlord was put to considerable
expense through no fault of his own but through the negligence of the Appellant Tenant.
The Tribunal awards the amount as claimed by the Respondent Landlord in respect of his
attendance on the date of the adjourned hearing on 12 January 2016 in the sum of €230
to be paid by the Appellant Tenants.
Finding 5:
The Tribunal finds that the Respondent Landlords have justifiably withheld the Appellant
Tenants’ security deposit in the sum of €750.
Reason:
It was agreed by both parties that the Appellant Tenants were in rent arrears and had not
paid rent since their payment of €250 made on 12th August 2015. It was also agreed that
the Appellant Tenants vacated the dwelling on 11th December 2015. The Tribunal
accepts the evidence of the Respondent Landlords that the amount of rent owed to the
date of vacation amounted to €2545.80. As this sum exceeds the amount of the security
deposit of €750 in accordance with the provisions of s.12(4)(a)(i) of the Act the landlord
has no obligation to return such deposit to the Appellant Tenants.
8. Determination:
Tribunal Reference TR1115-001474
In the matter of Adrian O Connor, Jillian O’Connor, Adrian O Connor, Jillian O
Connor (Tenant) and Leann Kenny, Michael Kenny (Landlord) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
The Appellant Tenants shall pay to the Respondent Landlords the net sum of
€2,025.80 comprised of rent arrears of €2,545.80 together with €230 expenses
together with €500 damages for the consequences of the non-payment of rent having
deducted €500 damages for the consequences of the Landlord’s breach of obligations
and having deducted €750 being the amount of the justifiably retained security deposit.
The said sum of €2,025.80 to be paid by the Respondent Tenants in 12 consecutive
monthly instalments of €168.82 payable on 28th. of each month, commencing on the
28th day of the month immediately following issue of the Order by the Board.
The enforcement of the Order for such payment will be deferred and the total sum
owing will be reduced by the amount already paid in the monthly instalments made to
the Respondent Landlords on each due date until the sum of €2,025.80 has been paid
in full.
For the avoidance of doubt any default in the payment of any of the monthly
instalments shall act to cancel any further deferral and the balance due at the date of
default shall immediately become due and owing to the Respondent Landlords
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 26 February 2016.
Signed:
MaryDoyle Chairperson
For and on behalf of the Tribunal..

 

Polsan v O’Driscoll

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0616-001803 / Case Ref No: 0316-25179
Appellant Landlord: Pattana Polsan
Respondent Tenant: Onagh O’Driscoll
Address of Rented Dwelling: 2 Glenhilton , Herbert Road , Bray , Wicklow,
A98E138
Tribunal: Elizabeth Maguire (Chairperson)
Peter Shanley, Roderick Maguire
Venue: Board Room, 2nd Floor, O’Connell Bridge House,
D’Olier Street, Dublin 2
Date & time of Hearing: 07 July 2016 at 2:30
Attendees: Jim Flanagan (Appellant Landlord’s Representative)
Onagh O’Driscoll (Respondent Tenant)
Niamh Blomer (Witness)
Caoimhe Kennedy (Respondent Tenant’s
Representative)
In Attendance: Wordwave t/a DTI Stenographers
1. Background:
On 29 March 2016 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 11 May 2016. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €1,325.00 to the Applicant
Tenant, within 3 days of the date of issue of the Order, being the unjustifiably
retained security deposit of €1,300.00 together with damages of €25.00 for its
unlawful retention, in respect of the tenancy of the dwelling at 2 Glenhilton, Herbert
Road, Bray, Co. Wicklow.
Subsequently the following appeal was received from the Landlord on 09 June 2016. The
ground of the appeal is Deposit retention. The appeal was approved by the Board on 14
June 2016
The RTB constituted a Tenancy Tribunal and appointed Peter Shanley, Roderick Maguire
as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Elizabeth
Maguire 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 07 July 2016 the Tribunal convened a hearing at Board Room, 2nd Floor, O’Connell
Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the Appellant) would be invited to present their case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and she reminded the Parties that
knowingly providing false or misleading statements or information to the Tribunal was an
offence punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
The Chairperson asked if there were any queries on the procedures, there were no
queries.
The parties intending to give evidence were sworn in.
5. Submissions of the Parties:
Appellant Landlords’ Case:
The Appellant Landlords Representative’s evidence was that there were a number of
matters in the adjudication report which he described as “mistakes”. He had set these out
in his documents forwarded to the RTB, and contained in the Case File. He said that the
parties had entered into a fixed term tenancy in September 2015 for one year, which was
a renewal of a prior lease. It was indicated to the landlord in January 2016 that the tenant
wished to vacate the dwelling prior to September 2016. He said that it was not open to
the tenant to do this, and this had been notified to the tenant.
The Appellant Landlord had written to the Respondent Tenant on 5 February 2016,
requesting a date that the Respondent Tenant would vacate the dwelling, and enclosing a
checklist obtained from the RTB website about what should be done on vacating a
dwelling. The landlord also wrote:
“Having reviewed the matter and in consultation with our letting agent, PRTB etc, I think
the fairest way for all concerned is that you continue to pay monthly rent until such time
as a new tenant is found and until the new tenant signs a lease and begins to actually pay
rent.”
The Respondent Tenant had indicated by email in reply that she would vacate the
dwelling on 10 March 2016. Mr. Flanagan directed the Tribunal to a sentence in this email
as follows:
“I understand I signed a lease and I understand the clauses including losing my deposit –
which is at the discretion of the landlord.”
It was Mr. Flanagan’s submission that this was an agreement by the tenant that the
Appellant Landlord was entitled to retain the deposit if the fixed term tenancy was ended
early by Respondent Tenant.
The Notice of Termination dated 11 February 2016, served on the Appellant Landlord by
the Respondent Tenant on 15 February 2016, gave a date of termination of the tenancy
as 13 March 2016. Mr. Flanagan said that the Appellant Landlord was disregarding this
as it was the Appellant Landlord’s view that this was an invalid Notice of Termination.
This was because the notice period should have been 42 days, and this was not the
case.
Despite his evidence that the Appellant Landlord was disregarding the Notice of
Termination, he said that arrangements were put in place to have the dwelling re-let to
another tenant, and a number of prospective tenants viewed the dwelling, with the cooperation
of the Respondent Tenant.
Mr. Flanagan gave evidence that he contacted the Respondent Tenant on 10 March
2016, notifying her that a new tenant was due to take up occupation of the dwelling on 12
March 2016, and that she should vacate immediately. He said that this arrangement with
the new tenant had been put in place, based upon the email from the Respondent Tenant
stating that she would leave on 10 March 2016, as the Appellant Landlord assumed that
this was the date the Respondent Tenant intended to leave.
The Respondent Tenant vacated the dwelling on 10 March 2016.
He said that when the Appellant Landlord and he entered the dwelling, the Respondent
Tenant having vacated, they were obliged to spent a full day (8 hours each) cleaning the
dwelling. There was damage to the mattresses, which were new at the date of the
commencement of the tenancy. The cost of the two mattresses was €550.00 and a
receipt was furnished to the Tribunal. He had taken photographs which were included in
the Tribunal Case File.
When questioned by the Tribunal, he agreed that some cleaning would always have to be
done before a new tenant would take up a tenancy, but he said it should only have been
four hours in total, rather than the 16 hours in total that he and the Appellant Landlord
spent cleaning. He had calculated that the landlord and his time for this cleaning was
€300.00.
He also said that there was some damage to the floor of the dwelling from high heeled
shoes. He had been given an estimate to re-sand and varnish the floor.
Mr. Flanagan said that it was a first letting when the Respondent Tenant took occupation.
Previously, he and his partner had lived there. New beds and mattresses had been
purchased for the dwelling at the time of the letting.
The Appellant Landlord was claiming the costs associated with re-letting the dwelling.
This is the sum of €1,300.00 which was paid to the letting agent. A receipt was furnished
to the Tribunal for same. When questioned by the Tribunal, he agreed that even if the
Respondent Tenant had stayed to the end of the fixed term tenancy (September 2016) he
would have incurred this cost at that time.
Mr. Flanagan gave evidence that a new tenant took possession of the dwelling on 12
March 2016. He also confirmed that there were no arrears of rent, and in cross
examination agreed that the tenant’s rent was paid up to 13 March 2016.
He also confirmed that the Appellant Landlord was not seeking any monies from the
Respondent Tenant in respect of rent between the date which the dwelling was vacated,
and the end of a 42 day period dating from the receipt of the Notice of Termination on 15
February 2016.
The landlord is seeking the following:
(a) €1,300.00 in respect of the fee paid to the letting agent for re-letting the dwelling on 12
March 2016.
(b) €550.00 for two new mattresses.
(c) €300.00 for cleaning of the dwelling.
Therefore, the Appellant Landlord is claiming that the security deposit was justifiably
withheld, in part discharge of these costs and expenses.
He said that it was his view that the Respondent Tenant had breached the terms of the
lease. He said that he believed there is a provision in the legislation which provides that if
a fixed term lease is terminated early by the tenant, the landlord is entitled to the costs
incurred in re-letting the dwelling, and that the landlord is therefore entitled to use the
security deposit to set off against this cost.
Mr. Flanagan agreed that this provision is not contained in section 12(4) of the
Residential Tenancies Act, which is the section that deals with the return or repayment of
a security deposit. He re-iterated that it was the Appellant Landlord’s position that such a
provision exists in the Act, and that therefore the Appellant Landlord is entitled to retain
the security deposit.
When asked by the Tribunal, he confirmed that neither he nor the Appellant Landlord had
informed the Respondent Tenant that the mattresses were damaged, nor that they
considered the dwelling in need of considerable cleaning, or any other issues regarding
her vacating the dwelling. He said this was because when he and the Appellant Landlord
had arrived at the dwelling after the Respondent Tenant had vacated they were annoyed
at the state of how it had been left. They felt the dwelling was in a bad state and were not
happy.
He denied that he had “blocked” the tenant on “Whatsapp”. When directed to a text from
the Appellant Landlord which said in response to the Respondent Tenant’s enquiry
regarding the deposit “sent back to account”, he said that he did not accept that this
meant that the Appellant Landlord agreed to repay the deposit. He said that the sequence
of text messages could have been altered, with some text messages deleted.
He also disputed that the Respondent Tenant left the dwelling as she was expanding her
business, as she claims. He said that she moved back to her parents’ house as all
correspondence for her is sent there.
In cross examination, he denied that there was only “wear and tear” in the dwelling when
the tenant vacated. It was his case that the amount of cleaning that had to be done and
the damage to the mattresses went beyond normal wear and tear.
To sum up, he said that the Respondent Tenant had breached the lease by vacating the
dwelling earlier than was provided in the lease. He said that the Appellant Landlord
should be compensated for the expense of re-letting the apartment, and the mattresses
and for the time spent cleaning the apartment.
Respondent Tenant’s Case:
The Respondent Tenant gave evidence that she had wanted to vacate the dwelling and
had notified the letting agent of this. She said that then the Appellant Landlord informed
her that she would have to pay rent until a new tenant took possession.
She said that she had sought to sublet the dwelling. This was not agreed by the Appellant
Landlord. She had emailed to say she would be vacating on 10 March 2016.
Subsequently her Notice of Termination referred to 13 March 2016 as her proposed date
to vacate the dwelling.
On 10 March 2016, which was a Thursday, she said she was at work. She said she had
sought a key from the letting agent for a back entrance to the dwelling to assist in
removing her belongings and she had intended to vacate the dwelling on 13 March 2016,
in accordance with the Notice of Termination she had served.
The Respondent Tenant gave evidence that the letting agent informed her that a new
tenant was going to move in on 12 March 2016. She texted the Appellant Landlord, who
confirmed this was the case. She then spoke to Mr. Flanagan, who told her she had to
vacate that day. She left work and she, her mother and father, packed up her belongings
in the dwelling and cleaned up. She took photographs which were included in the Tribunal
Case File. She said that the dwelling was “spotless”. She dropped the keys back, and she
texted the Appellant Landlord to confirm that she had done so. She said she was under
the impression that her deposit would be returned. She had texted the Appellant Landlord
to enquire as to what was to happen to her deposit and the Appellant Landlord had texted
“sent back to account”. She had forwarded her bank account details to the Appellant
Landlord for this purpose. She had also texted the Appellant Landlord to see did they
want to inspect the dwelling.
She did not hear from the Appellant Landlord, despite her efforts at texting and using
“Whatsapp”. She gave evidence that she was “blocked” on “Whatsapp” by Mr. Flanagan.
She said she had not altered the sequence or contents of text messages between herself
and the landlord, for example by deleting some texts.
She said that she was not informed by the Appellant Landlord about any issues regarding
the cleaning, the mattresses, or any other matter. She said if she had been told she
would have attempted to “sort things out” with the Appellant Landlord.
She gave evidence that she had left the dwelling as she was expanding her business and
was relocating to Cork. As a result of the witholding of the security deposit, she was
obliged to borrow in order to have a deposit for where she lives in Cork. In cross
examination by Mr. Flanagan, she said that she uses her parent’s address in Bray as a
correspondence address. She said that she now rents in Douglas in Cork.
It was her contention that there was no agreement that the security deposit would be
retained by the Appellant Landlord. She said that she had left the dwelling in a clean and
tidy state. She confirmed that when she took possession of the dwelling the mattresses
appeared to be new.
She said there was no reason why the deposit was retained and she wished to have her
security deposit returned to her.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The rent was €1,300.00 per month.
2. The tenancy commenced on 13 September 2014.
3. The security deposit paid was €1,300.00. This is held by the Appellant Landlord.
4. The tenancy ended on 10 March 2016.
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:
1. The Tribunal finds that the tenancy terminated by agreement on 10 March 2016.
Reasons:
1. The Tribunal accepts the evidence of the parties that the Respondent Tenant was
requested to vacate the dwelling on 10 March 2016, and that she did so by agreement.
7.2 Finding:
1. The Tribunal finds that the Appellant Landlord is in breach of her obligations under
section 12 (1)(d) of the Residential Tenancies Act 2004 in failing to return or repay
promptly the Respondent Tenant’s security deposit of €1,300.00, without justification.
Reasons:
1. A landlord is entitled to retain all or part of the deposit in two circumstances: where
there has been damage in excess of normal wear and tear or where the rent arrears or
other charges (such as utility bills) are owing to the landlord: section 12(4) of the Act (as
amended).
2. It was confirmed that there were no arrears of rent, in fact, the rent was paid up to 13
March 2016, three days after the tenant vacated the dwelling, and one day after a new
tenant took possession.
3. The Tribunal finds that there is no evidence of damage to the dwelling beyond that
which would be considered normal wear and tear in accordance with section 16(f) of the
Act (as amended). Having considered the evidence presented, and the photographs in
the Tribunal Case File which were provided by both sides, the Tribunal accepts the
Appellant Tenant’s contention that she had left the dwelling neat and tidy.
4. In relation to the mattresses, the Tribunal finds that any damage done would come
under the heading of normal wear and tear taking into account that the tenant had been in
occupation since September 2014.
5. In relation to the claim in relation to the time the landlord and Mr. Flanagan spent
cleaning the dwelling before the new tenant took possession, the Tribunal finds that
compensation for this would not be an appropriate deduction from a security deposit.
Following every tenancy, a certain amount of cleaning would have to be done before
another tenant would take possession. The Tribunal finds that this is part of the routine
business of being a landlord where there is no damage beyond normal wear and tear, as
was the case here.
6. The Tribunal does not accept the landlord’s contention that there is a provision in the
Residential Tenancies Act (as amended) which provides that where a fixed term tenancy
is terminated early by the tenant, the landlord is entitled to the expenses involved in reletting
the dwelling.
7.3 Finding
1. The Tribunal makes an order for damages against the Appellant Landlord for
unjustifiably retaining the Respondent Tenants security deposit in the amount of
€1,300.00.
Reasons:
1. The Tribunal is empowered under section 115(2) of the Act (as amended) to direct that
damages would be paid in respect of the unjustified retention of a security deposit by a
landlord.
2. The Tribunal finds that there was no justification for the Appellant Landlord to fail to
repay or return the security deposit to the Respondent Tenant.
3. Further the Tribunal accepts the evidence of both parties that the Appellant Landlord
did not contact the Respondent Tenant to tell her the reason she intended to retain the
deposit. Numerous efforts were made by the Respondent Tenant to contact the Appellant
Landlord and Mr. Flanagan in order to have her security deposit repaid. These efforts
were ignored by the landlord and Mr. Flanagan.
4. The Respondent Tenant was obliged to borrow to pay for a security deposit for the next
dwelling which she rented, as a result of the security deposit not having been repaid to
her by the Appellant Landlord.
5. In assessing the quantum of damages awarded to the Respondent Tenant, the
Tribunal considers the totality of all the evidence and the level of inconvenience suffered
by the Respondent Tenant arising from the Appellant Landlord’s failure to adhere to her
statutory obligations under the Act, in failing to repay or return the security deposit
promptly to the Respondent Tenant.
6. Having taken all of these matters into account, the Tribunal awards the sum of
€1,300.00 damages to the Respondent Tenant.
8. Determination:
Tribunal Reference TR0616-001803
In the matter of Pattana Polsan (Landlord) and Onagh O’Driscoll (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 €2,600.00 to the Respondent Tenant
within 28 days of the date of the issue of this Order, being the entire of the unjustifiably
retained security deposit of €1,300.00, (plus damages of €1,300.00 for retaining the
said deposit) in respect of the tenancy of the dwelling at 2 Glenhilton, Herbert Road,
Bray in the County of Wicklow.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
12 July 2016.
Signed:
Elizabeth Maguire
Chairperson
For and on behalf of the Tribunal.

 

Rennicks v Smaga

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001447 / Case Ref No: 0915-20785
Appellant Landlord: Robin Rennicks
Respondent Tenant: Katarzyna Smaga
Address of Rented Dwelling: 6 Seagrave Terrace, Meakstown, Finglas , Dublin
11, D11A309
Tribunal: Vincent P. Martin (Chairperson)
Louise Moloney, Orla Coyne
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 18 January 2016 at 10:30
Attendees: Katarzyna Smaga (Appellant/Respondent Tenant)
Pawel Korytkowski (Appellant/Respondent Tenant)
Joseph McPeake (Landlord’s Agent/Representative)
Jennifer Buckley (Landlord’s Agent/Representative)
Hilary Cummins (Landlord’s Agent/Representative)
Liam Cunningham (Witness)
Veronica Smaga (daughter of
Appellant/Respondent Tenant)
Jamie Leeper (Witness)
Paula Smaga (daughter of the
Appellant/Respondent Tenant)
Arletta Madura (Witness)
In Attendance: PRTB appointed Stenographer
1. Background:
On 09 September 2015 the Tenant made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred
to an Adjudication which took place on 19 October 2015. The Adjudicator determined
that:
1. The Respondent Landlord shall pay the total sum of €2,000 to the Applicant
Tenant, within 28 days of the date of issue of this Order, being damages for breach
of landlord obligations under s. 12(1)(b) of the Residential Tenancies Act 2004 for
failure to carry out necessary repairs, in respect of the tenancy of the dwelling at 6,
Seagrave Terrace, Meakstown, Finglas, Dublin 11, D11 A309.
2. The Respondent Landlord shall within a period of 28 days of the date of this
Determination Order ensure that there is an operating heating system which provides
heat to every radiator in the system at the dwelling at the aforesaid address.
3. The Applicant Tenant shall within 28 days remove the scaffolding erected to the
rear of the aforesaid dwelling so that the structure of the rear of the dwelling is in the
same condition as when she commenced the tenancy
Subsequently an appeal was received from the Landlord on 12 November 2015. The
grounds of the appeal were breach of landlord obligations which said application for an
appeal was approved by the Board on 20 November 2015. An Appeal was received from
the Tenant on 19 November 2015. The grounds of the appeal concerned the standard
and maintenance of Dwelling which said application for an appeal was approved by the
Board on 04 December 2015. The PRTB constituted a Tenancy Tribunal and appointed
Louise Moloney, Vincent P. Martin, Orla Coyne as Tribunal members pursuant to Section
102 and 103 of the Act and appointed Vincent P. Martin to be the chairperson of the
Tribunal (“the Chairperson”). On 02 December 2015 the Parties were notified of the
constitution of the Tribunal and provided with details of the date, time and venue set for
the hearing. On 18 January 2016 the Tribunal convened a hearing at Tribunal Room,
PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
PRTB file
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”. Both parties
confirmed that they had done so. 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. He 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.
He stated that the Respondent/Appellant Landlord would be invited to present his case
first and that there would be an opportunity for cross-examination by the
Appellant/Respondent Tenant. The Appellant/Respondent Tenant would then be invited
to present her case, and that there would be an opportunity for cross-examination by the
Respondent/Appellant Landlord. The Chairperson explained that following this, both
parties would be given an opportunity to make a final submission.
The Chairperson said that he 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. He also
stated that the Tribunal would be willing to consider an application made at any stage
during the Hearing seeking a short adjournment for the purpose of allowing the parties to
try to negotiate, on a without prejudice basis, a consent settlement of the dispute.
The Chairperson stated that all evidence would be taken on Oath or Affirmation and be
recorded by the official stenographer present and he reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment and/or both. The
Chairperson also reminded 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 only on a point of law [reference section 123(3) of the 2004 Act]. All
persons giving evidence to the Tribunal were then sworn in. Hereinafter the
Respondent/Appellant Landlord is referred to the Landlord and the Appellant/Respondent
Tenant is referred to the Tenant.
5. Submissions of the Parties:
The Landlord’s Case:
Evidence of Joseph McPeake
He stated that he owns and runs the estate agents business which trades as McPeake
Auctioneers and that he is the letting agent on behalf of the Landlord. He said he had no
knowledge whether or not a deposit was paid by the Tenant paid to the previous landlord
(L&M Developments). He stated that the said previous Landlord who built the
development and leased it to the Tenant had gone into liquidation. He stated that he was
not relying on the notice of termination referred to in the papers (dated 28 August 2015)
and was withdrawing same.
He agreed with the Tribunal that there was one issue in dispute between the parties,
namely the condition of the Dwelling and whether or not statutory obligations were
breached by the parties in respect of same. He denied that the Landlord, his servants
and/or agents were guilty of breaching any of his statutory obligations concerning the
upkeep of the Dwelling as alleged. He stated that whilst they were not seeking any
compensation, the Landlord is opposing any award being made against him
He stated that he took over the management of a number of properties for the Landlord
including this dwelling in July 2015 stating that the Landlord had purchased it about a
year earlier. He stated that an inspection of the Dwelling was carried out which he stated
confirmed that the Dwelling was in poor condition yet it was a totally new fitted out
Dwelling at the time of the commencement of the tenancy. He referred to photographic
evidence which he submitted supported his viewpoint that the Dwelling is in poor
condition including cigarette burns and scribbles on the carpets and furniture. He stated
that every available space in the Dwelling appeared to be used to store a multitude of
boxes containing clothing and jewellery and he submitted that some of the heavy boxes
stored in the attic may have caused the damage to a heat circulation pipe. He stated that
to inspect the attic properly it would be necessary to remove the boxes from the attic but
alleged that the Tenants did not facilitate same.
He stated that there was no record of any complaints concerning the condition of the
Dwelling made by the Tenant to the said previous owners. He stated that he was not
saying that the condition of the Dwelling was perfect at the time when he took over the
management of the Dwelling but submitted that every single request that was made to his
office was dealt with expeditiously. In relation to the boiler he stated that the Tenants
themselves did some of the repairs alleging that the Tenants had topped up the
pressurised tank with fresh water. He alleged that his staff and hired contractors were
verbally abused when they visited the Dwelling. He submitted that the issue of dampness
resulted from the Tenants not switching on the extractors and stated that his witness Liam
Cunningham will confirm this.
He stated that whilst the current monthly rent is €1,150.00, he submitted that in his
estimation and/or opinion, a comparable 4 bed dwelling commands a monthly rent of
€1,500/€1550. He stated that the Tenants are therefore paying considerably less than the
current market rent. He concluded by saying that he and his staff had always acted
promptly and reasonably and had done everything within their power to address issues
which arose and had spent €3,300 in repairs since 27 July 2015.
Evidence of Hilary Cummins
She stated that she is the letting agent for McPeake Auctioneers acting on behalf of the
Landlord. She stated that together with her colleague Jennifer Buckley, she visited the
Dwelling on 2 occasions. She stated that there were a lot of cigarette burns on the
carpets which were of light cream in colour and also poor paint work and decoration of
some of the walls in the Dwelling which paint work and decoration had been carried out
by Tenants. She said that from her observations there was no evidence of water leaking
from the boiler as alleged.
She said that there were a considerable amount of boxes and items lying around the
Dwelling and some of these boxes were ‘rammed’ into the attic and that the vent in the
bathroom which she submitted would lead out to extract any condensation from
showering has been bent and damaged. She stated that due to the level of aggression
experienced when inspecting the dwelling, she became uncomfortable being in the
Dwelling.
She stated that the Landlord did agree to replace the lighting in the hallway with a more
functioning day to day pendant type light. She stated that this lighting requires a GD bulb
which costs about €1 per bulb. In response to a query raised by the Tribunal, she
accepted that there was evidence of some water staining on the kitchen ceiling wihich
she said was dry staining.
Evidence of Jennifer Buckley
She stated that the Dwelling was a 4 bedroomed end of terrace house built around 2010.
She said she is the letting agent for McPeake Auctioneers acting on behalf of the
Landlord. She stated that she had visited the Dwelling on 3 occasions and alleged that it
was in poor condition as a result of the way that the Tenants were ‘abusing’ living in the
Dwelling and treating everything in the Dwelling with disrespect. She stated that the
Tenants were aggressive towards her when inspecting the Dwelling. She stated that on
several occasions she did receive a lot of emails from Pawel Korytkowski requesting
various repairs to be done and submitted that they always responded promptly to same
saying,‘Nothing was left undone that needed to be done’. She said that four adults and
one child resided in the dwelling. She said also that the garden to the dwelling was not
maintained by the Tenants and that the garden looked like a scrap yard. She said that
access visits were difficult and that on one occasion she was refused access to one of the
bedrooms in the dwelling.
Evidence of Liam Cunningham
He stated that he was the main electrical and plumbing contractor employed by McPeake
Auctioneers. He stated that during the occasion of one of his visits to the Dwelling, Pawel
Korytkowski has told him that he himself had undertaken to do some of the repairs to the
boiler. He stated that he or this team of workers had replaced the expansion vessel of the
boiler and also replaced the automatic valve. He submitted that fresh water had been
poured into/ topped up the tank and that this, in his opinion, had caused damage and
rotting to the inside of the system. In reply to a question raised by the Tenant, he said that
both he and his brother who worked with him were RECI registered and fully insured. He
stated that all communications with Pawel Korytkowski had always been amicable but
that other residents in the Dwelling had been verbally abusive and aggressive which
caused him to withdraw from the dwelling. He stated that he had a good working
relationship with McPeake auctioneers but at one stage phoned Hilary Cummins to inform
her that he would not tolerate any customer talking to him in such an abusive way as the
Tenant had.
The Tenant’s case
Evidence of Pawel Korytkowski
He stated that he is the co-tenant and that he paid a security deposit in the sum of
€1,150.00 to the previous landlord. He stated that the initial tenancy agreement
commenced on the 22nd January 2010 and was most recently renewed on the 1st March
2014. When they first moved in to the Dwelling, it was in poor condition and he stated that
he had to paint it. He denied that any person ever smoked cigarettes inside the Dwelling
submitting that they always smoked outside on the patio. He stated that the monthly rent
was discounted because of the condition of the Dwelling. He stated that the boxes in the
Dwelling were items which his spouse sold as part of her Internet web business. He
denied the assertion made by Joseph McPeake that he did not make any complaints to
the previous landlord but stated that these were verbal communications and that he
regretted not having made them in writing. He also denied that the complaints intensified
around the time that a notice of termination (not being relied upon by the Landlord) had
been served on them.
He submitted that the dampness was caused by a broken vent and strongly denied that it
was due to any actions or omissions on the part of the tenants. He denied that he ever
obstructed the workmen calling to the Dwelling to do repairs but accepted on some
occasions the Landlord’s agent would phone him in the morning requesting and/or
expecting access to the Dwelling to do the repairs later that day submitting that being
given such short notice was not feasible and/or unreasonable. He denied ever topping up
the tank with fresh water and said that he did not carry out any other alteration to it.
He said that on there was a dead rat found in the attic (April 2015) and that this matter
was not dealt with properly by the Agent. Under cross-examination he denied the
allegation made that the poor and untidy way which he maintained the outside of the
dwelling may have caused the rat problem.
He stated that the bulbs for the light do not cost €1 as alleged but cost €3 each and that
they have up to 30 such bulbs in operation in the dwelling and that the light in the landing
is still not functional. He accepted upon making a complaint on the weekend before this
appeal hearing the contactor made himself available to fix a boiler problem which arose
the very next day. He accepted that this was an impressively prompt response time. In his
concluding remarks to the Tribunal he accepted that issues mentioned in a report carried
out by Fingal County Council has been addressed but stated overall the response to the
on-going and varied problems which arose in the dwelling was ineffective and
unsatisfactory
Evidence of Veronica Smaga,
She said that she is the daughter of the Appellant/Respondent Tenant and resides with
her parents and 2 siblings in the Dwelling. She denied the allegation made that she or
any other resident in the Dwelling verbally ever abused the letting agents and/or the
workmen.
The Chairperson thanked both parties for attending and advised them that following the
hearing the Tribunal would prepare a report and make its Determination in relation the
dispute and would notify the PRTB of that Determination.
6. Matters Agreed Between the Parties
• The Appellant/Respondent Tenants are Katarzyna Smaga and Pawel Korytkowski
• The current monthly rent is €1,150.00
• 5 persons (the Appellant/Respondent Tenants and their 3 children) reside in the
dwelling
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence
presented to it by the parties, the Tribunal’s findings and reasons therefor are set out
hereunder.
Finding No. 1: The Tribunal finds that the Tenant’s claim against the Landlord for breach
of his obligations under Section 12 (1)(b) of the Act alleging that he failed to carry out
works adequately is not upheld.
Reason: The Tribunal is not convinced that the damage caused to the Dwelling results
from a breach of statutory obligations on the part of the Landlord and/or his servants or
agents. In respect of the allegation made by the Tenant concerning poor maintenance
and repairs being carried out (especially to the boiler) on the part of the Landlord, his
servants and/or agents, the Tribunal notes that the Tenant did not have any independent
expert evidence to support this claim. The Tribunal has taken into consideration the
nature of the tenancy noting, inter alia, that 5 persons reside in the Dwelling.
The Tribunal finds that the Landlord and/or his servants or agents responded promptly to
complaints in relation to issues and problems which arose concerning the condition of the
dwelling and acted in a reasonable and professional way.
The Tribunal finds that the Tenants failed on some occasions to provide adequate access
and/or to act reasonably in allowing the Landlord, his servants and/or agents access to
the dwelling to inspect, assess and repair. The Tribunal finds that the Tenant’s actions
and omissions had hindered and/or deprived the Landlord, his servants and/or agent
(including maintenance and repairs persons) of being given adequate access to the
dwelling to repair the boiler. The Tribunal finds, on the balance of probabilities, some
residents in the Dwelling most likely acted inappropriately and/or aggressively towards
the Landlord, his servants and/or agents which said behaviour impeded an inspection
and/or impeded the matter which arose being resolved effectively and adequately.
The Tribunal notes that since the outset of the tenancy the Tenant has enjoyed paying a
reduced and/or below market rent as a result of the condition of the Dwelling.
The Tribunal notes that since the outset of the tenancy the Tenant has enjoyed paying a
reduced and/or below market rent as a result of the condition of the dwelling. The
Tribunal recognises that there was a conflict of evidence between the parties and, on the
balance of probabilities, the Tribunal prefers the oral testimony of the witnesses for the
Landlord and found the oral testimony of Liam Cunningham especially credible. For the
avoidance of any doubt, the Tribunal does not find that the Tenant has caused damage to
the dwelling in excess of wear and tear.
Finding No. 2 At the initial commencement of the tenancy agreement, the Tenant paid a
security deposit in the sum of €1,150.00 to the previous landlord.
Reason: The Tribunal accepts the evidence of the Tenant and notes same was not
refuted by the Landlord
Finding 3 The Appellant/Respondent Tenants are Katarzyna Smaga and Pawel
Korytkowski
Reason: This was agreed between the parties.
8. Determination:
Tribunal Reference TR1115-001447
In the matter of Robin Rennicks (Landlord) and Katarzyna Smaga and Pawel
Korytkowski (Tenants) the Tribunal in accordance with section 108(1) of the
Residential Tenancies Act 2004, determines that:
The Appellant/Respondent Tenant’s claim against the Landlord for breach of his
obligations under Section 12 (1)(b) of the Act alleging that he failed to carry out works
adequately in respect of the tenancy at the dwelling at 6 Seagrave Terrace, Meakstown,
Finglas, Dublin 11 is not upheld.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 29 February 2016.
Signed:
Vincent P. Martin Chairperson
For and on behalf of the Tribunal.

 

Sciberras v Dunn

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0914-000805 / Case Ref No: 0414-11634
Appellant Tenant: Christopher Sciberras
Respondent Landlord: Charles Dunn
Address of Rented Dwelling: 31 Reuben Avenue , Rialto, Dublin 8, D08E9E4
Tribunal: Anne Colley (Chairperson)
Thomas Reilly, Dervla Quinn
Venue: Board Room, PRTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 11 January 2016 at 10:30
Attendees: Christopher Sciberras (Appellant Tenant)
In Attendance: Representative of Wordwave International
Stenographers
1. Background:
On 18 April 2014 the Tenant made an application to the Private Residential Tenancies
Board (“the PRTB”) pursuant to Section 76 of the Residential Tenancies Act 2004
(referred to hereafter as “the Act”). The matter was referred to an Adjudication which took
place on 28 July 2014.
The Adjudicator determined that:
1. The first named Appellant Tenant’s application regarding the invalidity of the
Notice of Termination dated the 22 March 2014 and the Respondent landlord’s
breach of his obligations under the Act in respect of the first named Appellant
Tenant’s tenancy of the dwelling at 31 Reuben Avenue, Rialto, Dublin 8 is not
upheld.
2. The first named Appellant Tenant’s application regarding an illegal eviction in
respect of the first named Appellant Tenant’s tenancy of the dwelling at 31 Reuben
Avenue, Rialto, Dublin 8 was withdrawn by the first named Appellant Tenant at the
hearing.
Subsequently the following appeal was received from the tenant on 03 September 2014.
The grounds of the appeal were standard and maintenance of dwelling, unlawful
termination of tenancy (Illegal eviction), invalid Notice of termination and Breach of
landlord obligations. The appeal was approved by the Board on 12 September 2014.
The PRTB constituted a Tenancy Tribunal and appointed Anne Colley, Tom Reilly and
Dervla Quinn as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Anne Colley to be the chairperson of the Tribunal (“the Chairperson”).
The parties were duly notified of the constitution of the Tribunal and provided with details
of the date, time and venue set for the hearing.
On 11 January 2016 at 10.30 a.m. the Tribunal convened a hearing at the Board 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:
None
4. Procedure:
The Chairperson noted the presence of the Tenant and confirmed his identity with him,
and also confirmed that the PRTB had been informed that the Landlord had indicated to it
that he would not be present at the hearing. The Chairperson further confirmed with the
tenant that he had received the relevant papers from the PRTB in relation to the case and
that he had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure that would be followed; that the Tribunal was a
“De Novo” hearing, i.e. a full re-hearing of the case; that it 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
normally then be an opportunity for cross-examination by the Respondent, which in this
case would not be happening; that as the Respondent was not present he would not be
presenting his case to the Tribunal. The Appellant Tenant enquired if this meant that the
Respondent Landlord had abandoned his defence, and therefore the contentions being
made by the Tenant would be accepted and the Landlord’s case dismissed. The
Chairperson explained to him that this was not the case, and that it was still up to the
Tenant to present his evidence and make his case to the Tribunal, which would then be
weighed up and a determination reached by the members. Following further queries from
the Tenant the Chairperson confirmed that the Tribunal was bound in a general way by
the principles underlying the provisions of the European Convention on Human Rights,
but did not have jurisdiction to examine the terms of the Convention and how it applied to
the hearing, which was the remit of the High Court only in this instance. She also
confirmed for him that the Rules of the Superior Courts did not apply to the conduct of the
hearing, but that the Tribunal was bound to comply with the provisions of the Residential
Tenancies Act 2004 as amended, and the rules made pursuant to Section 109 of the Act.
She also confirmed that the Tribunal was bound by the requirement to adhere to fair
procedures in the hearing of the case before it
The Chairperson explained that following the presentation of his evidence the Tenant
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 reminded the Party present 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 party present 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.
Mr Sciberras was then sworn in.
The Chairperson then indicated that due to the content of some of the submissions made
by the Tenant prior to the hearing and to avoid confusion as to the role and remit of the
Tribunal it was necessary for her to make a statement as to the jurisdiction of the PRTB
Tribunal, which she then read into the record of the hearing, which is set out below:
1. The Tribunal can only hear matters that relate to the Residential Tenancies Act 2004,
as amended, and cannot hear complaints or matters that relate to breaches of other
legislation unless specifically referred to in the Act.
2. The grounds for this appeal consist of the application for dispute resolution from the
Tenant received by the PRTB on the 18th April 2014 and the file in that connection in the
PRTB, including the Adjudication Report, but does not include all the oral evidence given
by both parties at the adjudication hearing, unless it is recorded in that report.
3. It is a matter for the Tribunal to weigh up the evidence as to whether or not
allegations of false statements having been made are proven, or not.
4. No criminal matters may be dealt with by this Tribunal. Allegations of criminal
behaviour, which do not constitute proof of anything in themselves, must be the subject of
a complaint to An Gárda Síochána, who are charged under the Irish Constitution with the
investigation and prosecution of criminal complaints. The Tribunal cannot take account of
such allegations unless there is a criminal conviction in that regard.
It is a matter for the person making the allegations to make a formal complaint with the
Gárda and to follow that up if necessary. It is not the remit of the PRTB to pursue such
criminal allegations made by one party or other in a dispute.
5. The PRTB cannot carry out its own investigations of disputes, except through the
hearing of such matters at Adjudication or Tribunal hearings. It does not have such an
inquisitorial remit in relation to tenancy disputes brought to it. In relation to Tribunal
hearings in particular, it is up to the parties to make their own cases and bring their own
witnesses, similar to the adversarial procedures in the Courts in this jurisdiction, while at
the same time the Tribunal assists the parties in bringing the relevant facts and evidence
to its attention, particularly where they are not legally represented.
6. The responsibility for obtaining names of any persons alleged to have entered into
the dwelling of the Tenant, for the purposes of establishing if a criminal offence has been
committed by one or more of them, is the remit of the Garda, not the PRTB.
The Tribunal may, however, hear evidence as to whether or not the Landlord did breach
his duty pursuant to Sec. 12(1)(a) of the Act to allow the Tenant peaceful and exclusive
possession, and we may make a determination on that question.
7. The Tribunal is not allowed to look behind the title of a landlord to grant a lease or
letting of a dwelling under the provisions of the Residential Tenancies Act 2004 (Section
110).
8. No matter that has already been decided by a Tribunal of the PRTB, or which has
been determined by an Adjudicator and has not been appealed to a Tribunal within the
specified time limit, may be pursued in front of this Tribunal. We are not permitted to rehear
matters or issues that have already been decided.
9. Any ruling on jurisdiction of this Tribunal that a party contests may be brought by him
or her before the High Court in an application for Judicial Review.
Following this statement being read by the Chairperson the Tenant queried again
whether, in the absence of any submissions being made by the Landlord, his case should
not be dismissed. The Chairperson explained that there is no onus on the respondent to
make a case and that the Tribunal did not have inquisitorial powers or remit, and that the
situation that pertained in PRTB Tribunals was not the same as that in the courts, where
a defence could be set aside if there was no appearance by that party, or dismissed if no
defence was lodged in the court. She also reminded the Tenant that, if he had any
difficulty with the procedures employed, he had the remedy of seeking Judicial Review or
appealing on a point of law to the High Court.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Tenant stated to the Tribunal that he had found a letter under the television in the
dwelling on the 22nd March 2014, which he alleged had been left there by the Landlord
when he entered the dwelling without the permission from the tenants there. He
submitted that the notice was therefore invalid as it had been served unlawfully, and was
also invalid as it had misspelt his name.
The Tenant maintained that, as he held a Part 4 tenancy in the dwelling, the Notice of
Termination should have specified the particular section of the Act under which the
Landlord was terminating the tenancy, and the exact reasons for terminating. The Notice
had, he claimed, only said that the Landlord was putting the property up for sale, and this
was not enough to satisfy the requirements of Section 34 of the Act. He was
comprehensively questioned by the Tribunal as to his interpretation of the particular
section, and as to why he felt that the wording of the notice was insufficient. The wording
in question was: “The landlord has decided to offer the house for sale, and therefore
gives you notice to quit in accordance with section 34 of the Residential Tenancies Act”.
The Tenant indicated that he believed that the property should have been the subject of a
binding contract for sale at the time the Notice of Termination was served on him, as
opposed to the provision in Section 34 of the Act that “the Landlord intends, within 3
months after the termination of the tenancy to enter into an enforceable agreement for the
transfer to another” of the property. He said he was not aware that the property had now
actually been sold, but was informed by the Tribunal that the Property Price Register, a
publicly available register, showed that it had been sold in October 2014.
The Tenant also submitted that he believed that he had been singled out by the Landlord
because he had a difficult relationship with him, and had suspected that the house was
not actually being sold but would be taken off the market once he had left it. There were
three other tenants in the house, none of whom had received Notices of Termination at
that time. He then felt he had no option but to bring a dispute to the PRTB once he
received the Notice of Termination due to his belief that the Landlord was attempting to
unlawfully terminate his tenancy, and he had a finite period within which he could make
an application. He acknowledged that the other tenants had subsequently been served
with Notices of Termination on the 12th April 2014, despite two of them holding fixed term
tenancies, he alleged.
The Tenant alleged that the Landlord had repeatedly entered the house and the tenants’
rooms without their or his own permission and was thus in breach of his obligation under
Section 12(1)(a) in not allowing the tenants to enjoy peaceful and exclusive occupation of
the dwelling. The Landlord held a key to the front door of the dwelling, and also, he
believed, to each of the rooms that he had rented to the individual tenants. He used to let
himself into the property to do maintenance work from time to time, and he believed that
the Landlord had entered his room and the others also on such occasions.
He said that he had found a letter late on the night of Monday 7th April 2014 that had
been left under the door to his room earlier in the day by the Landlord, having entered the
dwelling without permission, he alleged. This letter said that there would be viewings
each Tuesday at 5.00 p.m. but did not mention any start date. While he was out of the
house the next day, Tuesday 8th April 2014, the first viewing occurred, and another
tenant reported to him that the Landlord had entered his room, and those of the other
tenants, despite his door having been locked. He had not expected a viewing to take
place, and so had left his personal items around the room and on the table. Some of
these, he alleged, were of considerable value to him, and included unpatented industrial
designs and legal papers for certain High and Supreme Court cases in which he was
involved. He also alleged that a sum of money had been taken, and expressed concern
that his two passports could have been copied as they were left out in the room. If they
had been given sufficient notice and warning of the commencement of viewings there
would not have been a problem, he said. For the next two viewings he was present
himself and saw many people enter the house without their details being taken by the
Landlord, who was personally conducting viewings of the house, and who was sometimes
in the back garden while viewers came and went around the house without hindrance or
enquiry. He said he had informed the Gárda of the missing money but they would not
investigate the report as they said they could only do so if there was a forcible entry
involved.
The Tenant gave evidence of threats being made by the Landlord that he would employ
security agents for the house, and they would place new locks on the front door, and if
the tenants happened to be there they would be locked in, or if not, locked out. Following
this he had changed the lock himself to prevent former tenants with the keys, or the
Landlord, from gaining entry to the property. He agreed that there had been exchanges
between himself and the Landlord following the viewing on the 8th April 2014 after he had
complained about the alleged unlawful entry.
The Tenant gave evidence in relation to alleged breach of Landlord’s obligations to
properly maintain the dwelling, resulting in the presence of mould in his room for
approximately 1-2 years prior to February 2014, even behind the stud partition walls. He
had cleaned it off but it always came back. He referred to a survey report that he had
purchased from a company that had carried out the survey for a prospective purchaser of
the property, and which referred to this mould. Other problems included leaks in the roof,
under which he saw that the Landlord had placed buckets in the attic to catch the drips.
He had requested the Landlord to fix these problems on numerous occasions, but nothing
was done about them.
On being questioned by the Tribunal the Tenant said he thought that he might have
changed the lock on the front door twice, once when his key didn’t work in it, and then
again after a key broke in it, and the Landlord was asked to fix it but didn’t, so the tenants
had repaired it. He thought that the Landlord had subsequently got a copy of the new key
from another of the tenants after asking the Tenant to be given a copy of the new key and
the Tenant had refused to do so. He believed the Landlord may have subsequently
changed the lock after that, as his key had got stuck in it and it wouldn’t work, so he just
pushed the door in, in order to gain access. This occurred sometime between the service
of the Notices of Termination and when he vacated the dwelling in July 2014.
The Tenant said he was not pursuing his complaint regarding the Landlord allowing
tenants to smoke in the house.
He said that he was claiming the costs associated with having to have a particular
medical test as a result of exposure to mould in his dwelling, which had to be carried out
in the UK as he did not wish to go to the hospital recommended in Dublin as he had an
ongoing dispute with the hospital at the time. The total cost to him was approximately
€675 to cover flights, travel costs, doctor’s costs, accommodation, and the application fee
in relation to his Injuries Board claim. He also claimed the cost of purchasing the survey
report on the condition of the dwelling, being €245, which had confirmed the presence of
the dampness. The Tribunal Chairperson informed him that he could not make an
application for future damages that he wished to make in relation to possible a third
party’s attempts to register patents on his inventions.
In addition, the Tenant was claiming compensation for the breach of the Landlord’s
obligations in the sum of €20,000, in particular because of the public nature of the hearing
and the publication of the report and determination, which would cause problems for him,
he said. The Chairperson of the Tribunal indicated that it would not be possible to award
damages on that basis as this is in the nature of taking a dispute to the Board.
He also said he now had to pay €340 per month instead of €250 that he had paid for the
dwelling, and his current property was smaller, and he was therefore claiming the excess
figure for a period of one year.
The Tenant then made further submissions in relation to his dissatisfaction that he could
not examine the Landlord due to his non-attendance at the hearing, and said he felt that it
was not a fair hearing as a result.
Respondent Landlord’s Case:
The Tribunal noted the contents of the Adjudicator’s report in this case, in particular in
relation to the submissions made by the Landlord at that hearing, and also considered all
papers that had been submitted by the Landlord to the PRTB and in the PRTB Case File.
These included an email sent to the Tribunals’ Section of the PRTB on the 8th January
2016, in which he confirms that the property in which the dwelling was situated was sold
in October 2014.
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 therefor, are set out
hereunder.
7.1 Finding: The Tribunal finds that the Appellant Tenant’s claim that the Respondent
Landlord entered the dwelling on a number of occasions without permission from the
Tenant is upheld, and the Landlord was therefore in breach of his obligations under
Section 12(1)(a) of the Act in that regard.
Reasons:
1. The Tribunal accepts the evidence of the Tenant that the Landlord entered the
dwelling, and the property in which it was situated, on the 7th and the 8th April 2014
without the prior consent of the Tenant, for the purpose of the delivery of a letter to him
and other tenants concerning the viewing times of the property, and the actual showing of
the property to prospective buyers, respectively. The Tribunal accepts that in doing so
the Landlord breached the provisions of Section 12(1)(a) of the Act which require that a
Landlord shall “(a) allow the tenant of the dwelling to enjoy peaceful and exclusive
occupation of the dwelling.”
2. The Tribunal also accepts the evidence of the Tenant that there were other
occasions on which he believed, from reports to him by other tenants in the house, that
the Landlord had entered both the property and his dwelling without permission or
previous arrangement with him, and on the balance of probabilities finds the Landlord did
so enter the dwelling.
3. The Tribunal awards the Tenant damages in the sum of €1,000 against the Landlord
for the above breaches of his obligations.
7.2 Finding: The Tribunal finds that Tenant’s claim that the Notice of Termination dated
22nd March 2014 was invalid is not upheld.
Reasons:
1. It was the belief of the Tenant that the Landlord had entered the dwelling unlawfully
and left the Notice of Termination there under the television for him on the 22nd March
2014. While it is possible that the Landlord did enter the dwelling unlawfully on that
occasion, there is no evidence before the Tribunal of that entry, and it is also possible that
he gained entry by being invited into the property by one of the other tenants there.
Therefore the Tribunal does not make a finding that the service of the notice was unlawful
and tainted by an unlawful act, as alleged by the Tenant.
2. The contention of the Tenant that the Notice of Termination was unlawful as it did not
comply with the requirements of Section 34 of the Act, and Ground 3 of the table to that
section, was incorrect in the view of the Tribunal. The wording of that part of the section,
as has been set out in the body of this report, shows clearly that a landlord is required
only to have formed an intention to enter into an agreement to sell the property within
three months of terminating the tenancy. The Tenant did not dispute any other aspect of
the Notice, in particular, he did not dispute the notice period contained in the Notice.
In this case, the Landlord served a Notice of Termination on the Tenant to expire in May
2014 in anticipation of placing the house on the market for sale in early April, as it
transpired, and this is evidenced by the fact that viewings were held starting on the 8th
April. The Tenant did not vacate on the termination date as stated in the Notice of
Termination, but did leave in July 2014. The sale of the property containing the dwelling
was completed in October, as is confirmed in the Property Price Register, and also
confirmed by a communication from the Landlord to the PRTB.
It is therefore clear that the Landlord had formed an intention to enter into an
agreement to sell the property within three months of the termination of the tenancy and
the requirements of Section 34 were complied with. The Tenant was mistaken in his
belief that the Act requires a Landlord to have actually entered into a binding contract for
sale prior to issuing a Notice of Termination to a tenant.
3. The contention that the Tenant was victimised by the service of a Notice of
Termination on him in advance of the other tenants receiving similar notices is not
accepted by the Tribunal. He was the only tenant with a Part 4 tenancy in the house, and
thus required a longer notice period than the others. They received notices on the 12th
April, and the question of the validity of those notices is not a matter for this Tribunal to
determine, as none of the other tenants, apart from the Appellant Tenant, pursued a
dispute through the PRTB.
7.3 Finding: The Tribunal finds that the Landlord was in breach of his obligations to
maintain the structure of the dwelling in accordance with Section 12(1)(b) of the Act.
Reasons:
1. The Tribunal accepts that there was mould and damp in the dwelling occupied by the
Appellant Tenant during a considerable period of his tenancy there. In the absence of
supporting evidence of the effects, if any, on his health as alleged by him, it is not making
a particular award of damages in that regard. However, it does award the sum of €500
against the Landlord for this failure to maintain and the consequent breach of his
obligations.
2. No damages are awarded to the Appellant Tenant for any costs associated with his
travelling to the United Kingdom for the particular test he underwent, as this test was
available in Ireland, and quite close to where he resided, and also the test indicated a
negative outcome.
Finding 7.4:The Tribunal makes no award of unspecified damages in respect of the claim
for €20,000 made by the Tenant, nor does it make any award in respect of his claim for
repayment of €1,080, being one year’s extra monthly rent of €90 that he paid after
vacating the dwelling.
Reason:
1. The case made by the Tenant and the Tribunal’s findings did not warrant the making
of any general award apart from those mentioned in the Findings set out above in this
report.
2. In particular, the finding that the Notice of Termination was valid and lawfully served
excludes the possibility that the Tenant could succeed in a claim for a higher rent he
might have to pay for his next accommodation.
8. Determination:
Tribunal Reference TR0914-000805
In the matter of Christopher Sciberras (Tenant) and Charles Dunn (Landlord) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Landlord shall pay the sum of €1,500 to the Respondent Tenant within
21 days of the date of the Determination Order, arising from breach of a landlord’s
duties under Section 12(1) of the Act, in respect of the tenancy of the dwelling at 31,
Reuben Avenue, Dublin 8.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 17 February 2016.
Signed:
Anne ColleyChairperson
For and on behalf of the Tribunal.

 

Secrii v O’Neill

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

 

 

Selvakumar v Afanaskova

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001675 / Case Ref No: 1215-23230
Applicant Tenant: Durga Selvakumar
Respondent Landlord: Aksana Afanaskova
Address of Rented Dwelling: 34, Lifford Gardens, South Circular Road, Limerick ,
Limerick,
Tribunal: John Keaney (Chairperson)
Dervla Quinn, Gene Feighery
Venue: Pegasus 2, Clarion Hotel, Steamboat Quay,
Limerick
Date & time of Hearing: 03 June 2016 at 2:30
Attendees: Durga Selvakumar (Applicant Tenant)
Aksana Afanaskova (Respondent Landlord)
In Attendance: DTI Word Processors
1. Background:
On 29 December 2015 the Tenant made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Mediation which took place on 03 February 2016. The Mediator determined that no
agreement was reached by the parties.
Subsequently the following application for referral was received from the Tenant on 15
March 2016. The grounds of the application are Anti-social behaviour, Deposit retention
and Other. The application was approved by the Board on 18 March 2016
The RTB constituted a Tenancy Tribunal and appointed John Keaney, Dervla Quinn,
Gene Feighery as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed John Keaney 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 03 June 2016 the Tribunal convened a hearing at Pegasus 2, Clarion Hotel,
Steamboat Quay, Limerick.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
6 x copy photographs submitted by the Applicant Tenant
Letter from another tenant of the dwelling, submitted by the Respondent Landlord.
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 would be invited to present their case first; that there would be
an opportunity for cross-examination by the Respondent; that the Respondent would then
be invited to present her case, and that there would be an opportunity for crossexamination
by the Applicant.
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 [reference section 123(3) of the 2004
Act]
5. Submissions of the Parties:
Applicant Tenant’s Case
The Applicant Tenant stated that at the time she had just moved to Limerick to take up a
new job. Respondent Landlord’s husband offered her a three month contract but she told
him that she would not sign a contract as she might have to leave at short notice. The
Applicant Tenant went on to state that she agreed with the Respondent Landlord’s
husband that she would give him at least 10 days’ notice to terminate the tenancy and he
agreed that if she did her deposit would be returned. She said she paid him a deposit of
€450.00 and one month’s rent in advance. The Applicant Tenant stated that all her
dealings were with the Respondent Landlord’s husband. She said that on or about 7th or
8th of October 2015 she was told at work that she was being transferred to Dublin. She
telephoned the Landlord’s husband and told him that she would be leaving on or about
the 16th or 17th of October 2015. She said he agreed that that was ok. On the 14th
October 2015 the Respondent Landlord telephoned her at work to advise her that she
had entered her room with a prospective tenant to show him the accommodation and she
apologised for having accidentally broken a plant belonging to the tenant. She said she
was a bit annoyed by the intrusion but told the Respondent Landlord that it was ok.
When she returned to her room after work she found that she could not open the window
as the handle would not work. She said in fact she thought the window was going to fall
out so she shouted to an adjoining tenant to help her. She said she telephoned the
Respondent Landlord’s husband and reported the problem to him and confirmed that she
would be leaving in a few days. She said he advised her that her deposit would be
returned after the room had been inspected and in return she advised him that she would
keep the keys until her deposit was returned. She said he was agreeable to this. Two
days after vacating the dwelling she received a telephone call from the Respondent
Landlord’s husband complaining that she had broken the window and that he would be
deducting the cost of repair from the deposit. She said she denied having broken the
window. She said he was verbally abusive. She contacted the Respondent Landlord’s
husband on 27th October 2015 and he was again verbally abusive and told her she owed
him €850.00 for a new window.
The Applicant Tenant, with the Respondent Landlord’s agreement the submitted copies of
6 photographs of her room in support of her case.
The Applicant Tenant confirmed that she was one of four tenants occupying the dwelling
each having their own room and sharing the kitchen, bathroom and lounge. She said the
Respondent Landlord only visited the dwelling at weekends and did not live there.
Respondent Landlord’s Case
The Respondent Landlord stated that the property was an old house which had been
newly renovated. She said new windows had been purchased from Poland because they
were cheaper and were installed in June 2015. There was no guarantee. She said she
advertised the room for rent for one year but was persuaded by the Applicant Tenant to
allow her to take a tenancy. She said that when the Applicant Tenant told her husband
that she was leaving she was advised that they would be showing the room and asked
her to keep it clean and tidy. The Respondent Landlord stated that she took photographs
of the Applicant Tenant’s room on 14th October 2015 as proof that the Applicant Tenant
had broken the window and was not keeping the room clean and tidy. The Respondent
Landlord, with the Applicant Tenant’s agreement, submitted a letter written by another
tenant confirming that she had shouted to him for help with the window but that this was a
week before she left the dwelling. The Respondent Landlord stated that she had enquired
of two window replacement companies about repairs to the locking mechanism for the
window but as they had not supplied the window each declined to repair the mechanism
and would only agree to supply a new window. She confirmed that the estimate submitted
by her was for a replacement window.
The Respondent Landlord stated that she and her husband and their child lived on the
property and occupied one of the bedrooms.
6. Matters Agreed Between the Parties
The parties agreed:
1. the tenancy commenced on 19 September 2015 and terminated on 16 October 2015;
2. the rental payment was €450 per month;
3. a security deposit of €450 had been paid by the Applicant Tenant at the
commencement of the tenancy and no part of the deposit had been repaid to the
Applicant Tenant
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.
Finding: The Applicant Tenant’s complaint that the Respondent Landlord had engaged in
anti-social behaviour is not upheld.
Reasons:
1. The Applicant Tenant’s evidence that the Respondent Landlord’s husband had been
verbally abusive to her on two occasions on the telephone is accepted by the Tribunal.
2. The Tribunal finds that the Respondent Landlord’s husband was acting as her point
of contact in relation to the tenancy and that he was not responsible or professional in his
dealings with the Tenant when she sought the return of her security deposit.
3. However, Section 17 of the Act defines anti-social behaviour, in the context of a
tenant’s behaviour and not that of a landlord.
4. Also the actions of the Respondent Landlord’s husband in his dealings with the
Applicant Tenant did not amount to a breach of a landlord’s obligation to allow peaceful
occupation of the dwelling as the two telephone conversations complained of occurred
after the tenancy had ended. Therefore the Tenant’s appeal in relation to anti-social
behaviour on the part of the Landlord is not upheld.
Finding: The Tribunal finds that the Respondent Landlord has unlawfully withheld the
whole of the Applicant Tenant’s deposit.
Reasons:
1. Pursuant to s.12.(d) of the Act a landlord is obliged to return promptly the deposit
paid by a tenant at the commencement of the tenancy unless.12(4) of the Act applies.
2. It was agreed between the parties that a deposit of €450 was paid at the
commencement of the tenancy and was not repaid at the end of the tenancy.
3. S.12 (4) of the Act relates to deductions from the deposit for damage in excess of
normal wear and tear.
4. The Respondent Landlord failed to establish on the balance of probabilities that the
failure of the window locking mechanism was caused by misuse by the Applicant Tenant
rather than by a manufacturing defect given that it was a new window. The Respondent
Landlord therefore failed to establish that the provisions of s.12 (4) applied to the deposit
and the deposit should be returned to the Applicant Tenant in full.
Finding: The tenancy was not a tenancy that was excluded from the provisions of the Act
by s.3 (2) of the Act.
Reason:
Having considered the conflicting evidence of both parties the Tribunal are of the view on
the balance of probabilities that the Respondent Landlord and her family did not reside in
the dwelling or any part of the building of which the dwelling formed part.
Finding: The Respondent Landlord was in breach of her obligation to allow a tenant to
enjoy exclusive occupation of the dwelling.
Reasons:
1. The Respondent Landlord did not deny that on 14th October 2015 she showed a
prospective tenant around the room occupied by the Applicant Tenant without the
Applicant Tenant’s express prior agreement. However the Applicant Tenant did not
disagree with the Respondent Landlord’s evidence that she had been advised when she
gave notice of termination that potential tenants would be shown around the room. For
this reason the Tribunal is not awarding any damages to the Applicant Tenant for this
minor breach of a landlord’s obligation.
8. Determination:
Tribunal Reference TR0316-001675
In the matter of Durga Selvakumar (Tenant) and Aksana Afanaskova (Landlord) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Respondent Landlord shall pay the total sum of €450.00 to the Applicant Tenant,
within 14 days of the date of issue of the Determination Order, being the unjustifiably
retained security deposit in respect of the tenancy of the dwelling at 34 Lifford
Gardens, South Circular Road, Limerick, County Limerick.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
08 June 2016.
Signed:
John Keaney Chairperson
For and on behalf of the Tribunal.

 

 

Thornton v Kelleher

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001624 / Case Ref No: 0116-23285
Appellant Tenant: Janet Thornton
Respondent Landlord: Pat Kelleher
Address of Rented Dwelling: Annahala East, Toames, Macroom , Cork,
Tribunal: Gerard Murphy (Chairperson)
Rosemary Healy Rae, John Tiernan
Venue: Committee Room 1, Cork City Council, City Hall,
Anglesea Street, Cork
Date & time of Hearing: 14 April 2016 at 2:30
Attendees: Janet Thornton (Appellant Tenant)
Mr Martin Vaughan (Witness subpoenaed by the
Appellant)
Pat Kelleher (Respondent Landlord)
Wendi Ward (Witness)
Margaret O’Connor (Respondent Landlord’s
Solicitor)
In Attendance: Stenographer
1. Background:
On 04 January 2016 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 08 February 2016. The Adjudicator determined that:
The Applicant Tenant’s application, regarding the Respondent Landlord’s breach of
his obligations under the Residential Tenancies Act 2004, in respect of the tenancy of
the dwelling at Annahala East, Toames , Macroom, Cork, is not upheld.
Subsequently the following appeal was received from the Tenant on 02 March 2016. The
ground of the appeal is Breach of landlord obligations. The appeal was approved by the
Board on 03 March 2016
The RTB constituted a Tenancy Tribunal and appointed Gerard Murphy, Rosemary Healy
Rae, John Tiernan as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Gerard Murphy 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 14 April 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:
The Appellant submitted a map/drawing of the Dwelling and its surrounds at the hearing.
4. Procedure:
At the commencement of the hearing, the Chairperson asked the parties present to
identify themselves and to say in what capacity they were attending the Tenancy
Tribunal. The Chairperson confirmed with the parties that they had received the relevant
papers from the Residential Tenancies Board in relation to the case and that they had
also received the Tribunal Procedures.
The Chairperson explained the procedure that would be followed; that the Tribunal was a
formal procedure but that it would be held in an informal a manner as was possible; that
the appellant tenant would be invited to present her 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 by the appellant tenant. The Chairperson asked the parties whether
they had any questions regarding the procedures to be followed in the Tenancy Tribunal
and they both said that they did not.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and he reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to six 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
only be appealed to the High Court on a point of law.
The Parties intending to give evidence were then sworn in.
5. Submissions of the Parties:
Submissions and evidence of the Appellant Tenant
By way of background, it is not disputed that the parties entered into a written tenancy
agreement around April 2013 (“the Lease”). The Term was for a period of two years from
1 June 2013, and the Lease expressly provided the tenancy would terminate on 31 May
2015. In addition to the usual terms of a tenancy agreement, the Lease provided that the
Dwelling would be occupied only by one person, although the Respondent consented to
the Appellant keeping no more than two dogs and five chickens at the property. The
Lease also provided at Clause 8 that “Tenant agrees that Tenant has examined the
House, including the grounds and all buildings and improvements, and that they are, at
the time of this Lease, in good order, good repair, safe, clean and tenantable condition.”
Clause 8 referred to a “Joint Inspection” attached to the Lease which “reflects the
condition of the House at the commencement of Tenant’s occupancy”. A copy of this
“Joint Inspection” was not submitted and the Appellant disputed that an inspection was
carried out before she moved into the Dwelling.
The Addendum to the Lease referred to certain matters which the Respondent agreed to
do, including to install a wood-burning stove provided by the Appellant, install a secondhand
solid-fuel cooker in the kitchen, install an electric shower in the bathroom, make
necessary repairs to the chimney and pay for or paint the interior of the Dwelling. The
Appellant agreed to paint the interior of the Dwelling herself, put up shelving, remove
wood panelling above the bath and replace with tiles, sand and varnish wood floors, and
other matters including to upgrade and maintain gardens front and rear.
At the hearing, the Respondent explained that he had recently acquired the Dwelling in
2013 when the Appellant approached him, through his agent, in relation to renting the
Dwelling. The Dwelling was in relatively poor condition and the Respondent had not
planned to rent the Dwelling. As can be seen from the terms of the Lease, both parties
were aware of the condition of the Dwelling before the commencement of the Lease, and
both parties undertook to do certain things to bring the Dwelling up to standard to make it
habitable. No issue was taken by either party in relation to the matters set out in the
Addendum to the Lease.
As can be gathered from the terms of the Lease, and the photographs submitted by both
parties, the Dwelling is an old house. It is a two-storey house. The Appellant explained
that she usually slept downstairs, as it was more convenient for her to get up in the
middle of the night to let her dog out during the night. The room the Appellant slept in
downstairs was originally meant as a sitting room, but the Appellant had used this room
as her main bedroom.
In her submissions in advance of the hearing, and in her evidence at the hearing, the
Appellant explained that she is seeking compensation and damages for breach of the
landlord’s obligations and for his breach of health and safety standards, damaging her
health and using the situation to force her to vacate the Dwelling without appropriate time
to make necessary arrangements. The Appellant moved out of the Dwelling on 9 January
2016 and the reasons for her leaving the Dwelling related to flooding at the Dwelling.
The Appellant gave evidence that there was a flood at the Dwelling on the night of 29
December 2015. The flooding occurred in the bathroom, on the ground floor, and water
came into the hall and the kitchen. The Appellant said that on the night in question there
was torrential rain. The Appellant texted the Respondent twice to tell him about the
flooding but she received no response that night. At the hearing the Appellant also said
she left a voice mail on the Respondent’s phone. The Appellant was of the view that the
Respondent should have supplied her with an emergency contact number for somebody
other than himself in the event that he was unavailable to deal with an emergency arising
at the Dwelling.
The Appellant slept upstairs that night, in case of further flooding. She spent two hours
mopping up water. The following morning, she found the downstairs bedroom completely
flooded. The front third of the bedroom was under two inches of water and the rest of the
room was under circa a half inch of water. Three pairs of walking shoes were completely
saturated. She tried phoning the Respondent and left a voice mail that morning. At 9.42
a.m. the Respondent sent a text message that workmen would arrive around 10.00 a.m.
Workmen arrived and removed linoleum from the kitchen. The concrete floor was
saturated. Beneath the linoleum was some underlay with old newspapers which was also
completely saturated.
On this point, the Appellant asked Mr Vaughan at the hearing about the underlay beneath
the linoleum. Mr Vaughan accepted when the linoleum was lifted up the underlay was
wet. It appeared the linoleum was glued to the floor, and Mr Vaughan explained they had
no equipment with them that evening to take it up, but he said that one of the workers
tried to remove the newspapers with a broom but that did not work. Mr Vaughan said the
Appellant told them to leave it. It was at that point that Mr Vaughan then asked the
Appellant was there anything else she wanted done in relation to the Dwelling, and she
said no.
The Appellant said one of the workmen who attended the Dwelling on the morning of 30
December 2015 was the Respondent’s brother, Mr Michael Kelleher. She said that he
inspected the shore/culvert at the back of the exterior of the Dwelling and she saw him
scooping and clearing some debris away. On that point, the Appellant asked Mr Vaughan
if he asked the workmen to go to the back of the Dwelling. Mr Vaughan said he went to
the rear of the Dwelling and it was dry. He said there were a few brambles in the
shore/culvert which were removed. There was no sign of water coming into the house
from the culvert or any accumulation of water.
The Appellant said she expected to hear back from the workmen about the cleaning but
she heard nothing back.
She said that on 1 January 2016 there was further flooding at around 5.00 p.m. coming
from the bathroom again. The Appellant sent a text to the Respondent and the
Respondent arrived that evening with some workmen and mopped up the flooding, but
she said he did nothing to find the source of the flooding and said he did not know where
it was coming from. The Appellant said she wanted something done about the floor in the
bedroom because she could not use it, and she said the Respondent asked her what she
wanted done. She said that she told him it was his business to find a solution. She said
the Respondent left that evening “without any commitment to doing anything”. At the
hearing the Appellant confirmed that she was angry, in particular, that the mess in the
kitchen after the linoleum had been removed was not being cleared up. She accepted she
asked the Respondent and his men to leave because she was angry about the whole
situation. In her application form to the RTB, the Appellant complained that nothing was
done to clean or disinfect the concrete flooring underneath the linoleum.
She said she did not hear from the Respondent again, until 5 January 2016 at 5.00 p.m.
when he left a voice mail saying he would arrive the next morning to see what needed to
be done. This was seven days after the first flooding. According to the Appellant she had
to spend the night of 1 January 2016 in the downstairs bedroom which was flooded as
her dog, who at this stage was quite old, had difficulty going up and down the stairs and
needed to go outside at intervals during the night. She said that she was awake all night
coughing and had to spend the entire weekend in bed due to a sinus infection. On
Monday 4 January she saw her GP and was prescribed antibiotics and steroids. She
said her GP urged her to leave the Dwelling. She immediately began making plans to
vacate the Dwelling and move to another property near Bantry. At the hearing the
Appellant accepted she had been looking at this property before the flooding occurred,
but had not considered this property ready to move into or habitable at the time. She said
that for the duration that she continued residing in the Dwelling she set up a folding day
bed and slept in the kitchen. On Wednesday 6 January she saw her GP again and said
her GP wanted to put her into hospital but she refused. On 9 January she left the
Dwelling permanently at 1.00 p.m. and by 9.00 p.m. that night her symptoms had reduced
by roughly 80% and she was no longer coughing or had difficulty breathing.
Sadly, the Appellant’s dog, Ruby, died shortly after she moved out of the Dwelling on 9
January 2016. The Appellant complained about feeling depressed and anxious due to
the emotional pressure of all that had occurred.
The Appellant has submitted a letter from her GP dated 4 January 2016 which stated that
her GP advised the Appellant “that she must leave her current lodgings as they have
recently been flooded and this is putting her health at risk. She should leave with
immediate effect to avoid further damage”. A second report from her GP dated 6 January
2016 was also submitted which confirmed that the Appellant had been undergoing two
days of treatment and was no better, and may need admission to hospital. The Report
noted the Appellant had a history of bronchiectasis, and had been prescribed an inhaler
and other medication since November 2015.
At the hearing the Appellant said she attributed her illness to mould from underneath the
linoleum in the kitchen and said this had been there for four years since the linoleum was
laid. She said the minimum standards for rented dwelling required the Dwelling to be free
from mould and damp.
The Appellant also submitted a letter dated 6 January 2016 which she sent to the
Respondent’s solicitor in which the Appellant confirmed that she would be vacating the
Dwelling on Saturday 9 January 2016. She referred to a letter from her GP that she
should “vacate the property with immediate effect to protect [her] health”. In that letter,
the Appellant noted that the Respondent had “requested to assess the damage to be
repaired at the property today”. The letter continued:
“I have sent him a text message informing him it will not be appropriate for him to do
anything until I have had the time to remove my furniture and belongings.”
In the letter she referred to the fact that her gardening equipment and supplies could only
be removed the following week, on Monday 11 January. The letter continued:
“In the meantime I request the privacy I need to rest and recover from my illness. Any
questions or statements need to be written, and I will respond in written form”.
The Appellant also noted she had referred a complaint in relation to the flooding to the
RTB.
An email sent the previous evening at 20.02 hours from the Appellant to the
Respondent’s solicitors was also submitted. In that email, the Appellant confirmed she
would be vacating the Dwelling “at the end of this week”. The email was in similar terms
to the letter sent on 6 January.
In a further email of 11 January, the Appellant confirmed she had left the Dwelling on 9
January. She also referred to having left some recycling and rubbish in the barn but that
she was trying to get someone to remove that for her. In a letter dated 20 January 2016
the Respondent’ solicitor confirmed that the Respondent was agreeable to disposing of
this rubbish and recycling it himself at no cost to the Appellant. The letter also referred to
gardening equipment not having been removed on 11 January as planned. This
equipment was removed in due course.
The Appellant had subpoenaed two witnesses, Mr Martin Vaughan, who attended the
hearing, and Mr Michael Kelleher, the Respondent’s brother. At the hearing a doctor’s
letter was handed into the Tribunal to explain that Mr Michael Kelleher could not attend
the hearing due to illness.
At the conclusion of the case the Appellant made an application for an adjournment of the
hearing so she could call Mr Michael Kelleher to give evidence. The Appellant alleged
that she saw Mr Michael Kelleher clearing the shore/culvert at the back of the Dwelling on
30 December 2015. Mr Vaughan was also in attendance at the Dwelling on that day, and
the Appellant was able to put this point to Mr Vaughan, who accepted that he removed
some brambles from the shore/culvert, but that there was no accumulation of water in the
culvert.
The Tribunal considered the Appellant’s request for an adjournment in order to allow Mr
Michael Kelleher attend to give evidence. The Tribunal determined that Mr Michael
Kelleher could not attend the hearing due to illness. The Tribunal also determined that it
was not necessary to adjourn the hearing in order to take Mr Kelleher’s evidence as it is
the case that both Mr Vaughan and Mr Kelleher attended the Dwelling on 30 December
2015. The Appellant was able to put the questions in relation to removing debris from the
shore/culvert to Mr Vaughan. In the circumstances, the Tribunal determined it did not
require to hear evidence from Mr Michael Kelleher.
The Appellant claims compensation in the amount of €4000 for the damage to her health
and her dog’s premature death and suffering, and for ongoing disruption. She seeks an
additional sum of €2000 in damages for what she says constitutes an act of punishment
by the Respondent for having referred a complaint to the RTB previously and for forcing
her to vacate the Dwelling. In addition the Appellant claims compensation for her moving
costs in the amount of €600; three months of the extra rent she has to pay for the
accommodation she is currently renting of €900 per month, the cost of replacing her
shoes which were damaged due to flooding of €210 plus VAT and €25 for the bathroom
linoleum which she said she laid herself.
The Appellant has submitted a receipt from McGuirk’s Removals dated 9 January 2016 in
the amount of €600.
The Appellant also submitted a number of photographs.
Submissions and evidence of the Respondent Landlord
The Respondent submitted detailed written submissions addressing the points made by
the Appellant in her submissions. He also addressed the Appellant’s submission in his
evidence at the hearing. He said he was attending a wedding reception in Carlow on the
night of 29 December 2015 and mobile reception was poor and he did not have his phone
in his possession during the course of the reception. At around 8.30 a.m. the following
day he noticed he had received two text messages and a voice mail from the Appellant.
The first text message was received around 10.10 p.m. and said that water was coming
into the property from the base of the toilet and there was too much to mop up. At 23.41
the Appellant left a voice mail saying that water was coming into the kitchen. The second
text message was sent at 8.05 a.m. on 30 December 2015 and said the sitting room was
flooded with an inch of water and the lino would need to be removed.
The Respondent stated that on receipt of the text messages he immediately phoned Mr
Martin Vaughan, a plumber, and asked him to attend the Dwelling as a matter of urgency.
There was still a strong storm blowing at that point. Mr Vaughan did attend the Dwelling
and confirmed that the floors and the lino were wet but that there was no water to mop up
and the water had subsided. Mr Vaughan removed the lino at the Appellant’s request.
There was newspaper underneath which was damp but not soaking.
Mr Vaughan and the other workmen with him, including Mr Michael Kelleher, went outside
to determine if they could ascertain where the problem originated. They could not see
where the water entered the property and there was no further water coming in at that
stage. Mr Vaughan checked the toilet and the sewage system to assess the problem and
they were operating perfectly.
According to the Respondent’s submissions, the culverts at the back of the house were
clear. On this point the Appellant in her evidence at the hearing said she saw Mr Michael
Kelleher remove debris from the culverts. Mr Vaughan, who attended the hearing and
gave evidence having been subpoenaed by the Appellant, confirmed that there were a
few brambles in the shore/culvert which were removed. There was no sign of water
coming into the house from the shore/culvert or any accumulation of water.
According to the Respondent, in his submissions and in his evidence at the hearing, he
had asked Mr Vaughan to ask the Appellant if there was anything further she wanted
done at the Dwelling, and she said no.
The Respondent confirmed that he received another text message from the Appellant on
1 January 2016 at around 5.30 p.m. about water coming into the Dwelling from the
bathroom. The Respondent requested his neighbour to attend the Dwelling with him and
they arrived around 6.00 p.m. There appeared to be a small stream of water coming from
the bathroom at the back of the house and going into a small pool underneath the sink.
Ms Claire O’Riordan also attended the property coming home from work and mopped up
around a third of a bucketful of water. The Respondent’s brother Noel also attended the
Dwelling. They checked the drains again and they were clear
According to the Respondent, the Appellant demanded that sandbags be placed all
around the house. The Respondent said this was pointless as the drains were clear and
there was no visible sign of water getting in. The Appellant demanded they dig to find the
problem, but the Respondent explained it was now dark. He said he would call the
following day. There was water pooling in the front yard, near the access gate to the
Dwelling which needed to be cleared.
According to the Respondent, the Appellant was verbally abusive on the evening of 1
January. There was a smell of dog urine in the kitchen, and the Respondent asked the
Appellant if the dog was sleeping in the kitchen. Prior to leaving the Dwelling the
Respondent had asked the Appellant if there was anything further she wanted him to do
and at this point the Appellant became very aggressive and insulting and ordered them all
to leave the Dwelling.
According to the Respondent, on 2 January he attended the Dwelling with three others,
including Mr Michael Kelleher. The Respondent inquired how the Appellant was and she
said water had come in during the night. The Respondent and his men again checked the
drains and inspected the exterior of the Dwelling to see if they could find the source of the
flooding, but could not. They speculated the water may have been coming from
underground due to the sheer volume of flooding at the time. They dug a new channel
and drained the water in the yard.
On this point, the Appellant denied the Respondent had called to the Dwelling at all on 2
January 2016 and said she had no record on her phone of any call from the Respondent
on 2 January 2016. However, the Appellant accepted she was sick that day and was in
bed all day. She said if the Respondent did call to the Dwelling she did not hear them. Ms
Wendi Ward who attended the hearing and gave evidence said her husband did attend
the Dwelling on 2 January with the Respondent.
The Respondent heard nothing further from the Appellant after 2 January. The
Respondent submitted a letter which he said his solicitor received from the Appellant on 4
January 2016 (Casefile 1: page 39 of 92). This letter is dated 4 July 2014, but this
appears to be an error. The copy submitted by the Respondent is stamped 4 January
2016. In that letter the Appellant stated that:
“The floor in the sitting room (I’m using it as a bedroom) is completely soaked and half of
it is covered with a soggy mess of wet, mouldy newspaper that is stuck to the floor. It will
take roughly five hours to clean it, and I will have to pay someone to do it, so will need
your agreement for the cost. I was really disappointed that you failed to respond to my
text message from Saturday evening when the water first appeared in the house through
the bathroom. If you had sent someone out that night the flooding in the sitting room
could have been mitigated.”
On 5 January 2016 the Respondent phoned the Appellant and left a voice mail at 5.00
p.m. saying he would visit the Dwelling the following day with a builder to undertake
works to the sitting room. The builder had floor cleaning equipment to clear the
newspapers in the kitchen which the Appellant said she would not be cleaning up.
The Respondent gave evidence that he received a text message from the Appellant at
8.45 p.m. on 5 January advising that she would be leaving the Dwelling on 9 January and
advising him not to enter the Dwelling and that she would not permit the Respondent to
do any works at the Dwelling.
Further written submissions were made by the Respondent in which he referred to the
terms of the Lease which provided that the landlord would not provide insurance for the
tenant’s belonging or be responsible for any loss of the tenant’s property (Clause 23 of
Lease).
The Respondent also stated that in September 2015 he had cleared out the shores and
culverts at the Dwelling and there was no difficulty with drainage prior to the flooding in
question which was purely the result of severe weather conditions at the time.
A number of matters were raised by the Respondent in relation to alleged damage to the
condition of the Dwelling by the Appellant during the course of the hearing. These matters
have been fully considered by the Tribunal and the Tribunal notes that all of the alleged
items of damage were denied in full by the Appellant. The Respondent has submitted a
number of receipts from Owen O’Riordan, Carpentry/Joinery dated 22 January 2016 for
€136.20, €107.82, and €164.57.
The Respondent confirmed that the deposit of €300 had not been repaid to the Appellant.
He said he was claiming rent for 9 days up to when the Appellant moved out of the
Dwelling on 9 January.
The Respondent also submitted a number of photographs.
6. Matters Agreed Between the Parties
The tenancy commenced on 1 June 2013. The Appellant Tenant moved out of the
Dwelling on 9 January 2016. The Appellant Tenant paid a deposit of €300 and this has
been retained by the Respondent Landlord. The rent was €350 per month and rent was
paid up to and including 31 December 2015.
7. Findings and Reasons:
Finding 1: There is no breach of landlord obligation to provide his contact details to the
Appellant.
Reasons: Section 12(1)(f) of the Act provides that the landlord shall provide the tenant
with “particulars of the means by which the tenant may, at all reasonable times, contact
him or her or his or her authorised agent.”
The Appellant complains that the Respondent failed to supply her with an “emergency
authorised contact other than himself and was unavailable when I was faced with flooding
in the house”. The Appellant refers to the events which occurred on the night of 29
December 2015.
The Appellant does not dispute that she had a mobile number for the Respondent. The
Respondent was contactable on that number. While there was a delay on the night of 29
December 2015 in responding to the Appellant’s text message and voicemail while the
Respondent was attending a wedding reception in Carlow, the Tribunal is satisfied that
once the Respondent in fact read and listened to those messages the following morning
he immediately contacted the Appellant and arranged for his workmen to call to the
Dwelling immediately on the morning of 30 December 2015, which they did.
The Respondent also replied very promptly to the Appellant’s text message sent around
5.30 p.m. on 1 January 2016.
In the circumstances there is no breach of the requirement in section 12(1)(f) if the Act.
There is no obligation under the Act for a landlord to provide an emergency authorised
contact other than the landlord himself as contended for by the Appellant.
Finding 2: There is no breach of landlord obligation regarding the standard and
maintenance of the Dwelling or the peaceful enjoyment of the tenancy is respect of the
flooding of the Dwelling on the night of 29 December 2015
Reasons The Tribunal is satisfied that the cause of the flooding on the night of 29
December 2015 was extraordinary heavy rainfall. The Appellant’s evidence was that she
sent two text messages to the Respondent and left a voice mail on his phone. The
Respondent’s evidence was that he was at a wedding reception on the night of 29
December 2015. However, the Respondent reacted promptly when he became aware of
the flooding and send workmen to inspect of the Dwelling on the morning of 30 December
2015. The Appellant complains that three pairs of walking shoes were damaged as a
result of the flooding on 29 December 2015.
The Tribunal is satisfied that the Respondent was not to blame for the flooding on the
night of 29 December 2015 and that he responded appropriately to the situation on 30
December 2015.
Finding 3: The Tribunal finds the Respondent Landlord was in breach of his obligation
regarding the standard and maintenance of the Dwelling in respect of the delay in
repairing the damage to the Dwelling after the flooding on 1 January 2016.
Reasons: Section 12(1)(b) requires a landlord to carry out maintenance and repairs to a
dwelling in accordance with the terms of that subsection.
The Appellant complains that the Respondent refused to clean and disinfect the flooring
immediately after the flooding and that he waited seven days before making any attempt
to deal with it. The Appellant also complains that the Respondent used the situation to
force her to vacate the Dwelling.
The Tribunal finds the Respondent responded promptly to both floods. He sent workmen
to the Dwelling on the morning of 30 December 2015 and he himself called to the
Dwelling on the evening of 1 January 2016. This is not disputed.
The Tribunal, however, finds there was some delay on the Respondent’s part in clearing
up after the flooding and carrying out full repairs, in particular after the second flooding on
1 January 2016. The Tribunal accepts the Respondent’s evidence that he called to the
Dwelling on 2 January. The Tribunal accepts that the Appellant may not have heard the
Respondent call to the Dwelling on that day as she was in bed all day. The Tribunal is
satisfied that the Respondent and his workmen did call to the Dwelling on 2 January
2016. This was confirmed by the Respondent himself and his witness, Ms Wendi Ward,
who is a neighbour. The Appellant said she did not see anyone at the Dwelling on 2
January. The Tribunal accepts the evidence of the Respondent that he knocked on the
door. It seems the Appellant may have been asleep.
However, the Tribunal finds the Respondent delayed in contacting the Appellant directly
after 2 January 2016 until 5 January 2016. In the meantime, the Appellant had to write to
the Respondent’ solicitor on 4 January 2016 pointing out that the “soggy mess of wet,
mouldy newspapers that is stuck to the floor” in the kitchen still had to be removed.
The Tribunal finds the Respondent should have arranged to call to the Dwelling again on
3 or 4 January 2016, or at least to contact the Appellant by phone. In the circumstances
there was a delay before the Respondent did contact the Appellant by text message on 5
January to say he would be calling over on 6 January.
The Tribunal takes into account the evidence of the Respondent that works were done on
30 December and 1 January after the flooding. The situation was not ignored. The
Tribunal also takes into account that the Appellant herself had not contacted the
Respondent after 1 January until she wrote to his solicitor on 4 January. On balance,
however, it was ultimately the Respondent’s responsibility to take the lead to contact the
Appellant to ensure whether further repairs needed to be carried out in the aftermath of
the flooding.
The Tribunal is satisfied that the Appellant suffered some inconvenience as a result of the
delay in the Respondent contacting her between 2 January and 5 January. However, the
Tribunal finds the Appellant had the use of the upstairs bedroom, even though it is of
course understandable why the Appellant wanted to sleep downstairs to let her dog out
during the night.
The Tribunal does not accept that the Respondent used the situation to force the
Appellant out of the Dwelling as alleged. The Tribunal takes into account the Respondent
did respond promptly on 30 December and 1 January. The issue of termination of the
tenancy was the subject of the previous Tribunal Report which was issued to the parties
after 6 January 2016. The fixed term of the Lease had already terminated on 31 May
2015, and the tenancy was therefore a Part 4 tenancy under the Act. The Tribunal takes
into account the evidence of the Appellant at the hearing that she was already looking at
other properties in the area in case the determination of the Tenancy Tribunal in respect
of the Notice of Termination did not go in her favour.
On balance the Tribunal is satisfied the Appellant decided to vacate the Dwelling, without
affording the Respondent the opportunity to carry out full repairs in the aftermath of the
flooding when the Respondent contacted her on 5 January. The Appellant’s email of 5
January 2016 recorded that the Respondent had “requested to assess the damage to be
repaired at the property tomorrow, 6 January”. However, it seems the Appellant at that
stage had already made up her mind to leave the Dwelling and she confirmed she sent
the Respondent “a text message informing him it will not be appropriate for him to do
anything until I have had the time to remove my furniture and belongings from the house.”
She also asked for privacy.
The Tribunal is satisfied no pressure was put on the Appellant to leave the Dwelling, as
alleged, and she was given ample time to move out of the Dwelling, which she did on 9
January 2016. It took some further time for the Appellant to remove her gardening
equipment.
On balance the Tribunal is satisfied the Appellant is entitled to damages in the amount of
€300 in respect of the inconvenience suffered by her in the aftermath of the flooding
between 2 January and 5 January 2016, during which time she had no contact from the
Respondent. However, the Tribunal also takes into account that when the Respondent
did contact the Appellant on 5 January 2016 she informed the Respondent she was
moving out of the Dwelling and specifically asked him not to carry out any repairs until
she had moved out of the Dwelling.
Finding 4: There is no breach of section 16(f) of the Act by the Appellant.
Reasons: Section 16(f) of the Act provides there is an obligation on a tenant not do any
act that would cause a deterioration in the condition the dwelling was in at the
commencement of the tenancy, but there shall be disregarded, in determining whether
this obligation has been complied with at a particular time, any deterioration in that
condition owing to normal wear and tear, that is to say wear and tear that is normal
having regard to—
(i) the time that has elapsed from the commencement of the tenancy,
(ii) the extent of occupation of the dwelling the landlord must have reasonably foreseen
would occur since that commencement, and
(iii) any other relevant matters.
The Tribunal rejects the Respondent’s claim for alleged damage to the Dwelling in excess
of normal wear and tear. The Tribunal takes into account these allegations were strongly
denied by the Appellant at the hearing in detail. The tenancy of the Dwelling was in
excess of two years, and some wear-and-tear must be expected during the period. The
Dwelling was also an old house that required ongoing maintenance. The Respondent
also consented to the Appellant keeping a dog at the Dwelling under the terms of the
Lease, and there was no specific requirement to keep the dog outside, although the
Respondent may well have expected the Appellant to have kept the dog outside. On
balance, the Tribunal is satisfied that the Appellant is not in beach of section 16(f) of the
Act.
Finding 5: The Respondent shall refund to the Appellant the balance of the deposit of
€300 less 9 days rent of €103.50. The daily rent is calculated as follows €350 per month x
12 / 365 = €11.50. The balance of the deposit to be repaid to the Appellant is €196.50.
Reasons: Section 12(1)(4) requires that a Landlord shall return or repay the Tenant’s
security deposit less any amounts lawfully withheld, including arrears of rent. It is not
disputed the Appellant was living in the Dwelling up until 9 January 2016. The Tribunal
has separately made an award in respect of the inconvenience suffered by the Appellant
between 2 and 5 January 2016.
8. Determination:
Tribunal Reference TR0216-001624
In the matter of Janet Thornton (Tenant) and Pat Kelleher (Landlord) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
The Respondent Landlord shall pay the total sum of €496.50 to the Appellant Tenant
within 14 days of the date of issue of the Order, being the unjustifiably retained portion
of the security deposit of €196.50 and the sum of €300.00 in damages for the
Respondent Landlord’s breach of his obligation in failing to maintain and repair the
dwelling in accordance with the Act, in respect of the tenancy at Annahala East,
Toames , Macroom, Cork.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
26 May 2016.
Signed:
Gerard Murphy Chairperson
For and on behalf of the Tribunal.

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0115-001011 / Case Ref No: 0914-14259
Appellant Tenant: Malgorzata Trojanska, Anna Trojanska
Respondent Landlord: Pauline Tansey, Frances Tansey
Address of Rented Dwelling: 39 Clipperview, Liffey Street West, Sarsfield Quay, Dublin 7
Tribunal: Thomas Reilly (Chairperson)
Ciara Doyle, Mervyn Hickey
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 10 June 2015 at 2:30
Attendees:
Malgorzata Trojanska, Appellant Tenant
Pauline Tansey, Respondent Landlord
Frances Tansey, Respondent Landlord
In Attendance:
Gwen Malone Stenographers
1. Background:
On 14/09/2014 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 26/11/2014. The Adjudicator determined that:
1. The Applicant Tenants’ application under the grounds of standard and maintenance of the dwelling and breach of Respondent Landlords’ obligations is not upheld.
2. The Notice of Termination served on 29th September 2014, by the Respondent Landlords on the Applicant Tenants, in respect of the tenancy of the dwelling at 39 Clipper View, Liffey Street West, Sarsfield Quay, Dublin 7, is invalid.
Subsequently the following appeal was received by the Tenant on 31/01/2015. The grounds of the appeal were Breach of landlord obligations, Invalid Notice of termination, Other and Standard and maintenance of dwelling. The appeal application was approved by the Board on 20/02/2015.
The PRTB constituted a Tenancy Tribunal and appointed Ciara Doyle, Thomas Reilly, Mervyn Hickey 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”).
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 10/06/2015 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:
PRTB File
3. Documents Submitted at the Hearing Included:
Letter from Dublin City Council dated 26 May 2015
4. Procedure:
The Chairperson asked the Parties present 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 while the Tribunal Hearing was a formal procedure the Tribunal would seek to be as informal as was possible; that the person who appealed (the Appellant Tenants ) would be invited to present their case first including the evidence of any witnesses; that there would be an opportunity for cross-examination by the Respondent Landlords; that the Respondent Landlords would then be invited to present their case, including the evidence of any witness, and that there would be an opportunity for cross-examination by the Appellant Tenants. He said that members of the Tribunal might ask questions of both Parties from time to time.
The Chairperson explained that following this, the Appellant Tenants and the Respondent Landlords would be given an opportunity to make a final submission.
He stressed that all evidence would be taken on oath or affirmation and would be recorded by the official stenographer present. He reminded the Parties that knowingly providing false or misleading statements or information to the Tribunal was an offence punishable by a fine of up to €4,000 or by up to 6 months imprisonment or both. The Chairperson drew the Parties attention to Section 7 of the Tribunal Procedures. He asked the Parties if they had any queries about the procedure, there were no queries.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the Board would make a Determination Order which would be issued to the parties and could be appealed to the High Court on a point of law only [reference section 123(3) of the 2004 Act].
The Parties giving evidence were then sworn in.
The Chairperson informed the parties that should they see merit in conferring with each other with a view to reaching an agreement the Tribunal would facilitate such a request and recess for a period to allow negotiations to take place.
5. Submissions of the Parties:
Appellant Tenants’ Case:
At the outset, Malgorzata Trojanska (hereinafter “the Appellant Tenant”) indicated that her sister Anna Trojanska who was a co-tenant was unable to attend the hearing due to unforeseen personal circumstances and the Appellant Tenant made her submissions on behalf of both of the Appellant Tenants.
The Appellant Tenant stated that the dwelling was a top floor residence comprising a two bed apartment containing a living room / Kitchen, two bedrooms and a Bathroom. She said that her appeal was focused on a number of issues, notably delays in having essential repairs carried out. Some of the delays extended up to seven months. Underlying issues relating to some of the problems complained of were not addressed and only superficial improvements were carried out. An example of this activity was the manner in which the bathroom problems where condensation and mould were inadequately dealt with. The walls, having been cleaned were painted over rather than the Respondent Landlords dealing with the causal factors. Reference was made to a broken door lock and it was stated that it took a period of six weeks to have repairs carried out. The Appellant Tenant said that water was dripping down from the ceiling of one of the bedrooms. It was claimed that in the bathroom a light was broken. The Appellant Tenant accepted that minor tasks were attended to reasonably quickly but the major issues were delayed or never attended to. Reference was made to the immersion timer and the setting of it with a view to having the timer activate to provide water at a constant temperature thereby having no recourse to using cold water to cool the temperature down and conserve energy. Window vents were claimed not to be functioning adequately. During the course of the tenancy the dwelling was inspected by Dublin City Council Inspectors on two occasions at the request of the Tenants. A report of February 2013 referred to at the Tribunal made reference to the good condition of the dwelling while noting the presence of some condensation and mould.
The Appellant Tenant said that numerous incidents of poor communication occurred between the parties both in terms of telephone calls and texts. This resulted in appointments being cancelled or broken at the last minute resulting in frustration. Where arrangements were agreed the Appellant said that such arrangements were not always adhered to. Both oral and written evidence of communications between the Appellant Tenants and the Respondent Landlords was presented to the Tribunal in support of their efforts to highlight issues in the dwelling and seek assistance in achieving a resolution. Notable in this exchange of letters was a detailed submission to the Respondents dated 3 September 2014 outlining all the matters still in need of attention. Photographic evidence presented featured the presence of moisture on a window, water stains and flaking paint on ceilings and other areas of the dwelling featuring damaged and soiled paintwork. The Appellant Tenant conceded that a member of the Management Committee had checked out the ceiling and attic area of the dwelling for water ingress. During this inspection some damp insulation material was found and removed.
It was alleged by the Appellant Tenant that entry to the dwelling had occurred on numerous times without permission by a workman employed by the Respondent Landlords. The Appellant Tenants claimed they requested a BER Certificate in February 2013 and having had no response repeated their request in 2014. A Notice of Termination was served on the Appellants by the Respondent Landlords dated 28 September 2014 and in the view of the Tenants it is invalid as in their view it lacks essential information necessary to achieve compliance. With reference to the Notice of Termination served upon them the Appellant Tenants stated that they were of the view
that they had no choice in the matter and that they had to vacate albeit they had not yet received the Adjudicators report. It was then decided that they would themselves issue a Notice of Termination to their Landlords. They issued the Notice of Termination on 17 December 2014.
Cross Examination of the Appellant Tenants:
The Appellant Tenant was asked if, on the visit of the Inspector from Dublin City Council in early 2013 if the Tenants agreed with his statement that the dwelling was in good order and that he noted some condensation and mould. The Appellant Tenant did not disagree with this statement.
Queried on the alleged entry into the dwelling without permission the response from the Appellant Tenant was that the tradesman was standing in the doorway. Asked if the Tenants had referenced the broken door lock in their submission to the PRTB, she responded that they had not done so.
The Respondent Landlords asked the Appellant Tenant why they would have allowed the Management Company ‘off the hook’ on matters in respect of which it had responsibility . No response was given by the Appellant Tenant. Asked who blocked the window vents, the Appellant Tenant stated that there were no vents there when they moved in.
Respondent Landlords Case:
In evidence, the Respondent Landlords said that the dwelling was re-roofed in 2011 and was made secure from water ingress. It was stated that the ceiling area featured a damp spot where upon investigation some damp insulation was found in the attic and this was immediately removed. As a result of complaints in early 2013 from the Appellant Tenants, the Respondent Landlords sought the assistance of a Mr Grehan from the Management Company to inspect the dwelling for defects. It was noted that some walls were damp and there was evidence of condensation especially in the bathroom and on windows and the bathroom ceiling despite the presence of a high powered extractor fan located in the bathroom. It was concluded that no water ingress was apparent and that the moisture present resulted from inadequate ventilation of the dwelling compounded by all the windows being closed and all external vents being sealed. The bathroom light and the timer for the immersion were found to be in working order when inspected by Mr Reilly (Tradesman) on behalf of the Respondent Landlords. It was noted that on this visit the storage and wall heaters, both items having been reported as malfunctioning were in full working order. It was stated that the Appellant Tenants were requesting repairs on items that were not broken. The Respondent Landlord confirmed rent increases occurred in February 2013 from €800.00 per month to €925.00 per month and in June 2014 to €1150.00 per month. The Respondent Landlords stated that on each occasion a rent increase took place the relationship became more strained.
The Respondent Landlords refuted any suggestion that any of the workmen sent to the dwelling to carry out repairs entered it without making an appointment in advance, or in situations where it was impossible to get a response from the Tenants by telephone or text a visit was made to the dwelling where the door was knocked upon and the Tenants’ names were called. On questioning by the Tribunal, the Respondent Landlord stated that one tradesperson, John Kelly, had been issued with a key in order to gain entry, however it was explained that this was necessary due to the frequency of calls from the Appellant
Tenants to carry out a repair. It was also stated by the Respondent Landlords that no issue was raised about the foregoing procedure until such time as the Appellant Tenants brought a case against them to the PRTB. The Respondent Landlords stated that significant issues arose from inadequate communications from the Appellant Tenants. They said that the return of text messages and phone calls was erratic and believed this to be a cost-saving exercise on the part of the Appellant Tenants. Appointments made on behalf of workmen and others were not always adhered to causing unnecessary cost and inconvenience to the Respondent Landlords. The Respondent Landlords stated that at all times they were responsive to all requests for assistance from the Appellant Tenants, however they expressed the view that the issues complained of were of the Tenants’ own making as evidenced by the feedback from the Dublin City Council inspections and from the Managing Agents and workmen involved. They referenced their comment contained in an email of 17 August 2014 in which it was agreed between the parties that only two jobs remained to be carried out namely, the fixing of a wall light over the sink in the bathroom and remedial measures in respect of paint marks on the bathroom and bedroom ceilings.
A Notice of Termination was served upon the Appellant Tenants on 28 September 2014 by the Respondent Landlords with a Termination date of 29 January 2015. With the passage of time the Respondent Landlords became aware that this Notice of Termination was invalid. It was confirmed that the Appellant Tenants posted their own Notice of Termination to the Landlords on 17 December 2014 which was received on the 18 December 2014 providing 28 days’ to vacate the dwelling.
On the matter of a BER rating the Respondent Landlords said that they were willing to acquire same but drew the attention of the Appellant Tenants to the damage they had done to the dwelling and that this would have a bearing on the outcome of such rating and therefore they were deferring same until the repairs were concluded. A full refund of the deposit paid was given back to the Appellant Tenants.
Summary of the Appellant Tenant:
They had shared the relevant information in as concise a way as possible. They do not wish to be blamed for damage in the Dwelling. The Appellant Tenants said that they do not believe the report of Dublin City Council and believe that mould was present. On the matter of communications they accepted that they were not always accessible, the Appellant said that at least one visit to the dwelling was imposed upon them. They claimed that a tradesman was not always present when he said he would be and agreed times were not adhered to. On receipt of the Notice of Termination they felt they had no option but to go and made arrangements to do so. Rent was always paid on time and the dwelling was looked after.
Summary of the Respondent Landlord:
The Respondent Landlords said that they tried to have repairs carried out promptly however repeated incidents were, in their view, not justified. The fabric of the dwelling has been damaged as a result of a failure to ventilate. Their commitment to maintain standards and fulfil their obligations was illustrated by their replacement of white goods in the dwelling e.g. Fridge Freezer and Microwave and this was supported by the Dublin City Council comments. The Respondents stated that they fulfilled their obligations fully.
6. Matters Agreed Between the Parties
 The Tenancy commenced on 29 November 2009.
 The dwelling was vacated on 18 January 2015.
 The monthly rent was €1150.00
 A deposit of €800 was paid.
 The deposit was refunded to the Tenants in full.
 There are no arrears of rent.
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence presented to it by the parties, the Tribunal’s findings and reasons therefor are set out hereunder.
Finding 1:
The Tribunal finds that the Respondent Landlords were not in breach of their obligations to maintain the dwelling and carry out repairs and maintenance as required and were in compliance with s 12 (1) (a) (b)(1)(11) of the Act.
Reason:
The oral evidence of the Respondent Landlords, supported by the documentary evidence presented at hearing featured ongoing efforts to respond promptly to the requests of the Appellant Tenants. It was noted by the Tribunal that efforts to communicate by both parties with each other frustrated efforts to maintain a harmonious relationship between the parties. The Respondent Landlords were fully engaged at all times with the Management Company in addressing issues that came within the remit of the Management Company while the matters drawn to their attention by the Dublin City Council Inspector on each of his two visits were dealt with promptly as highlighted in his letter of 26 May 2015. The Tribunal noted the absence of any tradesman witness in attendance to provide testimony.
Finding 2:
The Tribunal finds that the Notice of Termination served on the Appellant Tenants on 28 September 2014 is invalid.
Reason:
The notice served upon the Appellant Tenants was deficient in that it did not meet the requirements of s 34.4 of the Act. The requirement of this part of the Act is that the Landlord requires the dwelling or the property containing the dwelling for his or her own occupation or for occupation by a member of his or her family and the notice of termination (the “notice”) contains or is accompanied, in writing by a statement- (a) specifying – (1) the intended occupants’ identity and (if not the Landlord) his or her relationship to the Landlord, and (2) the expected duration of that occupation and (b) That the Landlord, by virtue of the notice, is required to offer to the tenant a tenancy of the dwelling if the contact details requirement is complied with and the following conditions
are satisfied: (1) The dwelling is vacated by the person referred to in subparagraph (a) within the period of six months from expiry of the period of notice required to be given by the notice or, if a dispute in relation to the validity of the notice was referred to the Board under Part 6 for resolution, the final determination of the dispute, and (2) The tenancy to which the notice related had not otherwise been validly terminated by virtue of the citation in the notice of the ground specified in paragraph 1,2,3 or 6 of this table.
Finding 3:
The Tribunal finds that the Notice of Termination served on the Respondent Landlords by the Appellant Tenants is invalid.
Reason:
The Appellant Tenants resided in the dwelling for a period in excess of six years and enjoyed the benefit of a further part 4 tenancy. To validly terminate such a tenancy a minimum notice period of 56 days is required. As the notice of termination issued to the Respondent Landlords stated 28 days the Notice of Termination is invalid and in breach of s 66 (1) (a) of the RTA 2004 as amended.
Finding 4:
The failure of the Respondent Landlords to submit a BER Certificate to the Appellant Tenants falls outside the remit of the PRTB.
Reason:
BER Certification and compliance comes within the remit of the Local Authority Pursuant to European Union (Energy Performance of Buildings) Regulations 2012 (S.I.243 OF 2012)
8. Determination:
Tribunal Reference TR0115-001011
In the matter of Malgorzata Trojanska, Anna Trojanska (Tenant) and Pauline Tansey, Frances Tansey (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Notice of Termination served on 29 September 2014, by the Respondent Landlords on the Appellant Tenants, in respect of the tenancy of the dwelling at 39 Clipper View, Liffey Street West, Sarsfield Quay, Dublin 7, is invalid
2. The Appellant Tenants’ application on the grounds of standard of maintenance of the dwelling and breach of Landlords’ obligations is not upheld.
3. The Notice of Termination served by the Appellant Tenants on the Respondent Landlords on 18 December 2014 is invalid.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 06/07/2015.
Signed:
Thomas Reilly, Chairperson
For and on behalf of the Tribunal.

 

 

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

Fitzgerald v Pakowska

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001631 / Case Ref No: 1115-22104
Appellant Landlord: Pamela Fitzgerald
Respondent Tenant: Arina Pakowska
Address of Rented Dwelling: 10 Dempsey Terrace,Wexford , Wexford,
Tribunal: Louise Moloney (Chairperson)
Anne Leech, John Keane
Venue: Conference Room, Dept of Environment,
Community and Local Government, Newtown
Road, Wexford
Date & time of Hearing: 12 July 2016 at 11:00
Attendees: Arina Pakowska (Respondent Tenant)
Natalia Pakowska (Respondent Tenants
Representative)
Pamela Fitzgerald (Appellant Landlord)
Joey Cleary (Appellant Landlord`s Witness)
Martin Fitzgerald (Appellant Landlord`s Witness)
In Attendance: Stenographer
1. Background:
On 03 November 2015 the Tenant made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 26 January 2016. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €5,550.00 to the Applicant
Tenant within 28 days of the date of issue of the Order, being damages of €5,000.00
for the consequences of unlawfully terminating the Applicant Tenant’s tenancy of the
above dwelling, together with the return of the unjustifiably retained security deposit
of €550.00.
Subsequently the following appeal was received from the Landlord on 26 February 2016.
The grounds of the appeal are Deposit retention, Invalid Notice of termination, Breach of
tenant obligations and Other. The appeal was approved by the Board on 29 February
2016
The RTB constituted a Tenancy Tribunal and appointed Louise Moloney, Anne Leech and
John Keane as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Louise Moloney 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 12 July 2016 the Tribunal convened a hearing at Conference Room, Dept of
Environment, Community and Local Government, Newtown Road, Wexford.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None save that an electricity bill was submitted by the Appellant Landlord to support her
claim for €49.51 from the Respondent Tenant, the Respondent Tenant accepted this
amount as being due and the bill was returned to the Appellant Landlord.
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 her case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellant.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and she reminded the Parties that
knowingly providing false or misleading statements or information to the Tribunal was an
offence punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
5. Submissions of the Parties:
Appellant Landlord`s Case:
The Appellant Landlord said that she rented the dwelling to the Respondent Tenant for 6
months from 3 July 2015. She said that there were problems arising in the dwelling in
October 2015. She said that she wrote to the Respondent Tenant seeking access to the
dwelling as she would be inWexford for three days and she wanted to inspect the
dwelling. She referenced the emails on the RTB file between her and the Respondent
Tenant which indicated that she wrote initially to the Respondent Tenant on the 19
September 2015 to say that she would be in Wexford on 26 October 2016 and that she
would like to inspect the wallpaper renovation as well as to collect some books. She said
that the Respondent Tenant responded and that the Respondent Tenant in her emails
indicated she might not be in the dwelling on the 26 October 2016 as she was going to
the Opera but essentially that as the Appellant Landlord had a key to the dwelling she
could come to the dwelling any time, this was said in the Respondent Tenant`s email of 7
October 2015.
The Appellant Landlord said that she entered the dwelling on the 27 October 2015 at
approximately 11 a.m., she said that she wanted to collect some books she had left in the
dwelling. She said that she found the dwelling in a mess and that she could not find
anything. She said that the Respondent Tenant had removed some of her belongings to
include clothes which she had left in the bedroom in a zipped plastic bag, files she had
stored in the bedroom and items she had left in the bottom drawer in the bathroom. She
said that some of these items she found in an area under the stairs in the dwelling which
she called a scullery, she said this area is very damp and not suitable for storage.
In response to a question from the Tribunal she accepted that she may not have spoken
with the Respondent Tenant at the beginning of the tenancy about her personal
belongings which she had left in the dwelling. She said she had put some of her
belongings into storage. She said that on the 27 October 2015 before she left the dwelling
she put her clothes out on the sofa in the sitting room as they were damp. She said that
she was in a state of shock at the condition of her personal belongings and wanted the
Respondent Tenant to see them. The Appellant Landlord said that she left a note in the
dwelling on the 27 October 2015 for the Respondent Tenant to say that she would like to
meet the Respondent Tenant on the 28 October 2015 at 1 p.m. She said that she also left
different notes in the dwelling on the 27 October 2015 giving the Respondent Tenant
notice to leave the dwelling on the 31 January 2016, telling her not to close the scullery
door, telling her not to touch her belongings. She explained this by saying she was in a
state of shock at the condition of her dwelling and her personal belongings. She said that
she was in the dwelling for approximately half an hour on the 27 October 2015.
The Appellant Landlord said that she could not find her keys to the dwelling when she
was leaving the dwelling on the 27 October 2015. She said that she left the door of the
dwelling half open and she called to her neighbour Mr. Joey Cleary to see if he could help
her find the keys. She said that she could not stay as she had a hospital appointment and
she left. She said that she never found the keys she lost in the dwelling on the 27 October
2015.
The Appellant Landlord said that she came back to the dwelling on the 28 October 2015
at approximately 11.30 a.m., that she got another key for the dwelling from her Architect
who retained a key for her. She said that she wanted to see if she could her locate her
books. She said her clothes were still spread out on the sofa in the dwelling as she had
left them. She said that she did not find her books, that she left her clothes as they were
in the sitting room of the dwelling as she wanted to air them, she said they were smelly.
She said that she did not meet the Respondent Tenant at the dwelling on the 28 October
2015 although she waited in the dwelling for a few minutes after 1 p.m. She said that the
Respondent Tenant moved out of the dwelling on the 28 October 2015 and that she
moved back in on the 29 October 2015.
When asked by the Tribunal how she knew the Respondent Tenant left the dwelling on
the 28 October 2015 she could not say. She confirmed that she received the Respondent
Tenant`s note of the 30 October 2015 setting out the Respondent Tenant`s reasons for
leaving the dwelling.
She said that she was leaving Wexford on the 30 October 2015 that she was only in
Wexford for three days. In response to a question from the Tribunal regarding the security
deposit of €550.00 held by her, she said that after what she had seen in the dwelling she
did not communicate further with the Respondent Tenant and that the Respondent
Tenant made a complaint to the RTB early in November 2015.
With regard to the standard and maintenance of the dwelling during the tenancy the
Appellant Landlord said that there was a leak which she had fixed by a neighbour who
fixed the gutter. She said that the dwelling is in a terraced row of six houses and her
house is the only house with a downpipe. She said that there was a leak through the flat
roof of the dwelling into the kitchen this was because of the gutter which was fixed. She
said that the dwelling is approximately 150 years old which means that a certain amount
of dampness can be experienced particularly if the dwelling is not aired or heated which
she said was not done sufficiently during the tenancy. She said that the issues with the
wallpaper, where the dampness was, were rectified by her; that she had told the
Respondent Tenant that the fire could not be used as the chimney needed cleaning
although when questioned she was not sure if she had said that she planned to have the
chimney cleaned; that the kitchen was dry-lined although in hindsight she said she should
also have had the sitting room dry-lined; that she had renovated the dwelling in 2007
when a new roof was put on the dwelling.
In response to questions she confirmed that all utility bills arising during the tenancy were
paid for by the Respondent Tenant with the exception of the electricity bill, she produced
a bill and estimated the balance to be added to this bill was €2.15 to cover the period 23
October 2015 to 28 October 2015 which left a total of €49.51 to be paid by the
Respondent Tenant. When asked, the Respondent Tenant considered the bill and said
that she accepted there was €49.51 due to the Appellant Landlord in respect of the
outstanding electricity bill. The original bill was returned to the Appellant Landlord by the
Tribunal.
The Appellant Landlord asserted that some of her belongings could not be found in the
dwelling which she alleged were in the dwelling at the start of the tenancy although she
accepted that the items she said were missing were not on the inventory attached to the
tenancy agreement entered into between the Parties.
The Appellant Landlord asserted that she was out of pocket a considerable amount of
money because the Respondent Tenant ended the fixed term tenancy in the dwelling on
the 28 October 2015. She said that she did not re-let the dwelling, that it was not that
easy to find a tenant. In response to questions from the Tribunal she confirmed that she is
currently residing in the dwelling and will be for a few weeks; she said that she left the
dwelling on the 30 October 2015 and returned in February 2016 for a few weeks; she said
that she had never let the dwelling prior to the tenancy with the Respondent Tenant and
that she had planned to sell the dwelling in February 2016 but she had not done so.
She said that she was not happy with the assertions that she had moved items back into
the house on the 27 or 28 October 2015 or that she had given the Respondent Tenant
notice to leave by the 31 October 2015. She said that these assertions were not true.
Evidence of the Appellant Landlord`s Witnesses:
Mr. Joey Cleary, the Appellant Landlord`s witness, in his evidence said that he had good
relationships with both Parties, that he previously held a key to the dwelling and was
accustomed to going into the dwelling. He said that prior to the 27 October 2015 the last
time he was in the dwelling was on the 7 October 2015 when he did a small gutter repair
and that the Respondent Tenant had dropped her key through his letter box to enable him
to access the dwelling to do this repair.
He said he went to the dwelling on the 27 October 2015 out of concern for both Parties.
He said that the Appellant Landlord called to him at approximately 11.30 a.m. on the 27
October 2015, that she was very distraught and that she was on her way to a hospital
appointment.
He said that the Appellant Landlord told him that she had mislaid her keys to the dwelling
in the dwelling, that she had left the door of the dwelling open, that she asked him to look
for the keys in the dwelling and to close the door for her. He said that he did this, that he
was approximately 2/3 minutes in the dwelling when he had a quick look around but he
could not find the keys and he then left closing the door behind him. He said he had
turned around from the door of the dwelling and was walking towards his own house
which is approximately 8 houses away from the dwelling when he met the Respondent
Tenant and he told her what had happened. He said that he re-entered the dwelling with
the Respondent Tenant, that they were speaking and conversing with each other, that the
Respondent Tenant got upset but he could not stay as he had a prior appointment which
he had to go to. He said that he left the Respondent Tenant in the dwelling at
approximately 11.45/11.50 a.m. When asked by the Tribunal as to why the Respondent
Tenant was upset he said that he could not say, that he was under pressure to go. He
said approximately two hours later he met the Respondent Tenant in the street with her
daughter and the Gardai all heading in the direction of the dwelling.
Mr. Fitzgerald, the Appellant Landlord`s witness, in his evidence said that he is an
Architect. He said that the dwelling is a 19th century terraced house lacking a damp proof
course and cannot in essence be as dry as a modern terraced house. He said also the
dwelling is on a slope and all the houses further up the slope are bringing dampness to
the dwelling. He said that the house on the right of the dwelling has a two storey
extension whereas the dwelling only has a single story extension. He said that the
dwelling receives the roof water from six houses further up the hill and that these houses
do not have their own down pipes. He said that it would be difficult to dry line the living
room due to the corners and shapes within the room. He said the dwelling needs daily
ventilation and when the weather is not so good heating. He said that given the physical
conditions in the dwelling a lack of ventilation or heating would give rise to mould, he said
that this was particularly so if clothes were stored under the stairs in the dwelling and that
the Appellant Landlord`s dismay in finding her personal belongings under the stairs could
be understood in this context.
Appellant Landlord`s final submission:
In her final submission the Appellant Landlord said that she rented her house in good
faith; that her house was not filthy; that the curtains were not filthy; that she left some of
her antiques for the Respondent Tenant to enjoy; that she did put a note on her oak
cabinet asking that cups would not be put on the cabinet, that this was a precaution. She
accepted that the Respondent Tenant was entitled to enjoy living in her house. She said
that the upstairs was perfectly dry, she accepted that the sitting room is a problem but
she said that her house is an elegant house.
Respondent Tenant`s Case:
The Respondent Tenant said that she did allow the Appellant Landlord access to the
dwelling but she did this on the understanding that it was just to collect items and that the
access would be for a very short time. She said that she saw the dwelling advertised in
the Estate Agents for renting in May 2015 and that she was to move into the dwelling in
June 2015 but the dwelling was not ready. She said that the dwelling had to be cleaned
and that wallpaper in the sitting room/living room as well as the hall had to be fixed. She
said that she moved into the dwelling even though this work was not done because she
was under pressure to leave her old apartment. She said that after she moved in she
discovered mould in the sitting room/living room.
The Respondent Tenant said that she wrote to the Appellant Landlord about the mould
and the damp, she referenced the emails of the 6 July 2015 on the RTB file between her
and the Appellant Landlord. She said that the wallpaper in the sitting room/living room
from one wall was removed and the wall painted but that this only addressed part of the
problem, that the rest was never fixed.
She said that the Appellant Landlord left her bedding in the dwelling and also that the
curtains in the dwelling were not clean. She said also that the Appellant Landlord left
notes on some items in the dwelling to the effect “do not touch”, “do not clean the mirror
as it is an antique” and such like.
She said that the room downstairs, the sitting room/living room, was in a bad state and
she did not use this room. She said that she asked the Appellant Landlord if she could
clean/wash the curtains, that she was told this was not possible save for the bathroom
and back room curtains. She said that she could not sleep with the curtains in her
bedroom, that they were full of dust, very sticky and there was a smell of them. She said
that she folded these curtains and put them away, that she used her own curtains and
that she told the Appellant Landlord that she was doing this.
The Respondent Tenant said that the Appellant Landlord failed to clear the house of her
personal belongings prior to the commencement of the tenancy. She said that the
Appellant Landlord left notes on items in the kitchen of the dwelling saying “do not touch”,
that the kitchen contents were in disarray to the extent that gardening tools were stored
on the bottom shelf in the kitchen.
She said that she removed the kitchen utensils and used her own. She said that the
Appellant Landlord had showed her the area under the stairs in the dwelling, called a
scullery, and that the Appellant Landlord was storing towels and bedding in this area. She
said that she put the kitchen utensils and the Appellant Landlord`s bedding/personal
belongs wrapped in bubble wrap under the stairs in the dwelling.
The Respondent Tenant said that the Appellant Landlord left a table and chair in the
bedroom upstairs which the Respondent Tenant was not allowed to use, she said that
she put this table and chair under the stairs in the dwelling. She said that she was
allowed to use the desk in the bedroom but because the Appellant Landlord had left her
belongings under the desk that it could not be used.
The Respondent Tenant said that she bought air fresheners and used these in the
dwelling during the tenancy, that she sleeps with the window in her bedroom open
throughout the year and when in the dwelling she had the windows open, she said that
depending on the weather she might only open the windows a little. She said that when at
home she also kept the back door to the dwelling open as she said there was a smell in
the house. She said that she was not comfortable with leaving the windows in the
dwelling open if she was not in the dwelling. She said that she also experienced a smell
like cat`s urine in the dwelling but that she could not find the source of this smell.
With regard to the events of 27 October 2015 she referenced the email correspondence
on the RTB file with the Appellant Landlord. She said that she understood the Appellant
Landlord was to access the dwelling on the 26 October 2015 and she said that she
waited in all day to meet the Appellant Landlord.
She acknowledged that she had said in her email of the 7 October 2016 the Appellant
Landlord could come to the dwelling any time as she had a key to the dwelling.
She said that on the 27 October 2015 she was coming back home to the dwelling and
she saw Mr. Cleary as he was closing the door. She said that Mr Cleary tried to explain
what had happened but that she could not understand him. She said that she thought the
Appellant Landlord was still in the dwelling and she asked Mr. Cleary to come back to the
dwelling with her. She said that she was shocked when she entered the dwelling and
found everything emptied from the storage under the stairs. She referred to the
photographs on the RTB file, she said that everything downstairs was literally upside
down. She said that she went upstairs and found her bathroom cosmetics and belongings
had been taken from the cupboard and were on the floor, she said that stuff was all over
the place. She said that she had only left the dwelling for 90 minutes maybe 2 hours and
came back to find the dwelling as she did. She said that she found a soft toy of a clown in
a drawer with her belongings, that she has a fear of clowns and that she had asked the
Appellant Landlord at the beginning of the tenancy to remove this item. She said that she
said there were foot prints in the garden. She said that she decided to go to the Gardai
and that she rang her daughter. She said that she did not stay in the dwelling on the night
of the 27 October 2015.
The Respondent Tenant said that on the 28 October 2015 when she came back to the
dwelling she saw that the door was open and the Appellant Landlord was walking around
in the dwelling. She said that the Appellant Landlord`s belongings were visible, that there
was towels, bedding and sheets on the Respondent Tenant`s bike. She said it looked like
the Appellant Landlord`s belongings were everywhere. She said that she went to the
Gardai again. She said on the 28 October 2015 she went to the Estate Agents to find
somewhere else to live and that she found another apartment which she was able to
move into that day. She said that she did not speak to the Appellant Landlord on the 28
October 2015, that she did not say to Appellant Landlord that she was going to leave.
She said that she was afraid to talk to the Appellant Landlord.
In response to questions from the Tribunal she said that she was considering leaving the
dwelling on the 27 October 2015 but that she made up her mind to leave on the 28
October 2015. She said that she was afraid to stay in the dwelling even if she locked the
doors. She said that she packed her belongings on the evening of the 28 October 2015
and she confirmed that she gave the keys to the dwelling back on the 3 November 2015.
She said that she did not use the central heating during the tenancy in the dwelling, she
said that she used an electric radiator.
She said that the Appellant Landlord should not be renting the dwelling to anyone given
the condition of the dwelling having regard to the damp, the mould, the inability to use the
fire and the ventilation issues. She said that her peaceful occupation of the dwelling was
disturbed, that although the conditions in the dwelling were not great she had cleaned the
dwelling herself, that she lived in the dwelling and that she had paid her rent.
Respondent Tenant`s final submission:
The Respondent Tenant said that she was forced to move out of the dwelling due to the
Appellant Landlord`s behaviour, that she would have fulfilled the term of her tenancy but
for the Appellant Landlord`s behaviour.
Evidence of the Respondent Tenant`s Witness:
Ms. Natalia Pakowska, the Respondent Tenant`s witness and daughter said that on the
27 October 2015 the Appellant Landlord came to her place of work at approximately
11.15 – 11.30 a.m., that she was shouting and very agitated, that she said the
Respondent Tenant was not living in her house anymore. The Respondent Tenant`s
witness said that at this time she did not know what was happening, that the Respondent
Tenant made contact with her and they both went to the dwelling. She said that her
mother, the Respondent Tenant, is now double locking her home, that she was very
stressed by her experience at the end of the tenancy in the dwelling, that the Respondent
Tenant is now constantly washing and cleaning to get rid of smells such is her anxiety
caused by her experience during the tenancy in the dwelling.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The Tenancy in the dwelling commenced on the 3 July 2015 on foot of a tenancy
agreement dated 1 July 2015 which is for a term of 6 months from the 3 July 2015.
2. The rent for the dwelling is €550 per month payable monthly in advance on the 1st day
of each month during the term of the tenancy.
3. A security deposit of €550 in respect of the tenancy in the dwelling was paid by the
Respondent Tenant to the Appellant Landlord at the commencement of the tenancy.
4. The security deposit of €550 is retained in full by the Appellant Landlord.
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.
Finding 1: The Tribunal find that the tenancy was unlawfully ended by the Appellant
Landlord in or about the 28 October 2015.
Reasons: It is clear from the evidence of the Parties that the Respondent Tenant
consented to the Appellant Landlord accessing the dwelling on the 27 October 2015 for
the purpose of inspecting the wallpaper repairs paid for by the Appellant Landlord and
collecting books belonging to the Appellant Landlord from the dwelling. The Respondent
Tenant`s email of the 7 October 2015 states “if you have a key is not problem, you will
came any time”. The Tribunal considers that while the Respondent Tenant thought the
Appellant Landlord was going to come to the dwelling on the 26 October 2015, the
Appellant Landlord was entitled to think that she had the Respondent Tenant`s
permission to access the dwelling on the 27 October 2015.
However it is also clear from the evidence of the Parties that the Appellant Landlord when
she accessed the dwelling on the 27 October 2015 disturbed the arrangements in the
dwelling by taking items out of storage areas, spreading clothes on the sofa in the
sitting/living room, placing notes for the Respondent Tenant at various locations
throughout the dwelling with various directions to the Respondent Tenant about how she
was to use or not use items, to the effect that the dwelling was the Appellant Landlord`s
home and purporting to give the Respondent Tenant notice of termination to take effect at
the end of January 2016. The Appellant Landlord`s actions on the 27 October 2015 were
clearly a breach of the Appellant Landlord`s obligation to all the Respondent Tenant
peaceful and exclusive occupation of the dwelling during the tenancy.
The Tribunal accepts the Respondent Tenant`s evidence that when she entered the
dwelling on the 27 October 2015 she found items which were in storage within the
dwelling had been taken out and that the contents of the dwelling as well as some of the
Respondent Tenant`s own belongings were not as she had left them. The Respondent
Tenant describes everything downstairs as being upside down. She says that upstairs her
bathroom cosmetics/ belongings had been taken from the cupboard and were on the
floor, that stuff was all over the place.
The actions by the Appellant Landlord on the 27 October 2015 were followed by her
further visit to the dwelling on the 28 October 2015. The Appellant Landlord says that she
left a note for the Respondent Tenant to meet with her at the dwelling on the 28 October
2015 at 1 p.m. yet in her evidence she says that she attended the dwelling on the 28
October 2015 at approximately 11.30 a.m., that she got another key for the dwelling from
her Architect who retained a key for her.
The Respondent Tenant`s evidence is that she did not stay in the dwelling on the 27
October 2015, that when she came back to the dwelling on the 28 October 2015 she
found the door open and the Appellant Landlord in the dwelling; that it looked like the
Appellant Landlord`s belongings were everywhere. She said that she went to the Gardai
again. She said on the 28 October 2015 she went to the Estate Agents to find somewhere
else to live and that she found another apartment which she was able to move into that
day. She said that she did not speak to the Appellant Landlord on the 28 October 2015,
that she did not say to Appellant Landlord that she was going to leave. She said that she
was afraid to talk to the Appellant Landlord
The Tribunal accepts the evidence of, the Respondent Tenant`s witness and daughter,
who said that on the 27 October 2015 the Appellant Landlord came to her place of work
at approximately 11.15 – 11.30 a.m. in an agitated state and said the Respondent Tenant
was not living in her house anymore.
The Appellant Landlord while she concedes that the Respondent Tenant was entitled to
enjoy living in the dwelling during the tenancy does not appear to understand that the
dwelling during the tenancy ceased to be the Appellant Landlord`s home. The clothes and
other items that the Appellant Landlord dislodged and spread out in the dwelling on the
27 October 2015 were left in that condition by the Appellant Landlord on the 28 October
2015. In addition the Appellant Landlord in her own evidence accepts that she left various
notes at the dwelling for the Respondent Tenant of the kind described in the submissions.
The Tribunal is of the view that the Appellant Landlord`s behaviour in the dwelling on the
27 October 2015 and on the 28 October 2015 constituted a rejection of the tenancy
agreement by the Appellant Landlord and did force the Respondent Tenant to make a
decision to look for somewhere else to live. The Respondent Tenant found suitable
alternative accommodation on the 28 October 2015 and was able to move into this
accommodation on the 28 October 2015 removing her belongings from the dwelling on
the 28 October 2015 and returning the keys to the dwelling on the 3 November 2015.
In all the circumstances and particularly those outlined above the Tribunal is satisfied that
the Appellant Landlord`s behaviour on the 27 October 2015 and the 28 October 2015
brought the tenancy in the dwelling to an end on or about the 28 October 2015. Taking
into consideration that rent was paid by the Respondent Tenant in advance for the period
up to and including the 2nd of November 2015 and that suitable alternative
accommodation was found quickly by the Respondent Tenant who was able to move into
this accommodation on the 28 October 2015, the Tribunal considers that €550.00 is an
appropriate level of damages for the breach by the Appellant Landlord of the fixed term of
the tenancy in the dwelling which breach led to the unlawful termination of the tenancy by
the Appellant Landlord.
2 Finding: The Tribunal finds that the Appellant Landlord is in breach of her obligations
under the Act and in particular Section 12(1) (a) thereof by unlawfully interfering with the
Respondent Tenant`s right to peaceful and exclusive occupation of the dwelling during
the tenancy.
Reasons: The reasons set out at Finding 1 above apply to this Finding also. The Tribunal
accepts the evidence of, the Respondent Tenant`s witness and daughter, and also of the
Respondent Tenant as to the stress and upset caused by the actions of the Appellant
Landlord on the 27 October 2015 and on the 28 October 2015. The Tribunal considers
that €700 is an appropriate level of damages for breach of the Appellant Landlord`s
obligations under the Act and in particular Section 12 (1) (a) thereof in failing to allow the
Respondent Tenant peaceful and exclusive occupation of the dwelling during the
tenancy.
3. The Tribunal finds that the Appellant Landlord is in breach of her obligations under the
Act with regard to the standard and maintenance of the dwelling during the tenancy.
Reasons: From the evidence of the Parties it is clear that the dwelling is an old house
with damp issues which have been partially addressed by the Appellant Landlord. The
Respondent Tenant`s evidence is that she only became aware of mould in the
sitting/living room area after the tenancy commenced, that some of the wallpaper in that
room was removed and the wall painted but that other areas downstairs in the dwelling to
include the hall were not fixed or addressed at all by the Appellant Landlord. The
Respondent Tenant`s evidence was that she could not use the downstairs sitting/living
room at all during the tenancy because of the dampness issues presenting. A water leak
in the dwelling was attended to by the Appellant Landlord who had the gutter fixed and it
appears that this dwelling has to clear rain water for all six houses in the terrace in which
the dwelling is situated so that this can add to dampness issues in the dwelling. The
Appellant Landlord concedes that in retrospect when she was dry lining the kitchen that
perhaps the sitting/living room should have been done also. The Appellant Landlord`s
witness suggested that the nature of a house as old as the dwelling which would have
been built without a damp proof course and which is bearing the burden of the water from
the other houses in the terrace is that it will have some damp issues ongoing.
The Respondent Tenant also said that she had to clean the dwelling at the
commencement of the tenancy; that curtains were sticky and not clean which she
removed using her own; that the fire could not be used and no arrangement was made to
clean the chimney so that the fire could be used during the tenancy; that she used an
electric heater upstairs in the dwelling; that she did her best to ventilate the dwelling but
that smells. This evidence was not accepted by the Appellant Landlord who said that she
rented the dwelling in good faith, that her house was not filthy; that the curtains were not
filthy; that she left some of her antiques for the Respondent Tenant to enjoy; that she did
put a note on her oak cabinet asking that cups would not be put on the cabinet, that this
was a precaution. The Appellant Landlord accepted that the Respondent Tenant was
entitled to enjoy living in her house, she said that the upstairs was perfectly dry, she
accepted that the sitting room is a problem but she said that her house is an elegant
house. The Appellant Landlord said that she did not re-let the dwelling, that it is difficult to
get a tenant and that she has used the dwelling for her own use since the 28 October
2015.
There is a conflict of evidence between the parties as to the issues of difficulty that arose
during the tenancy with regard to the standard and maintenance of the dwelling. The
Tribunal is satisfied on the balance of probabilities and having regard to the evidence that
the Appellant Landlord is in breach of her obligations under the Act and in particular
Sections 12.1. (b) with regard to the standard and maintenance of the dwelling. The
Tribunal considers that €250 is an appropriate level of damages for such breach.
4 Finding: The Tribunal finds that the Appellant Landlord has unjustifiably retained
€500.49 being portion of the security deposit of €550.00 paid by the Respondent Tenant
to the Appellant Landlord at the commencement of the tenancy in the dwelling.
Reasons: The Parties agree that a security deposit of €550.00 was paid by the
Respondent Tenant to the Appellant Landlord at the commencement of the tenancy and
that the security deposit is retained by the Appellant Landlord. The Parties also agree that
an electricity bill submitted by the Appellant Landlord for €49.51 is payable by the
Respondent Tenant. In view of these agreements and the Findings above the Tribunal by
deducting €49.51 for the electricity bill from the security deposit of €550.00 calculates that
€500.49 was unjustifiably retained by the Appellant Landlord.
8. Determination:
Tribunal Reference TR0216-001631
In the matter of Pamela Fitzgerald (Landlord) and Arina Pakowska (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Landlord shall pay the total sum of €2,000.49 to the Respondent Tenant
within 28 days of the date of issue of the Order, being €500.49 in respect of the
balance of the unjustifiably retained security deposit of €550 having deducted €49.51
in respect of electricity charges plus €550.00 damages for the unlawful termination of
the tenancy by the Appellant Landlord plus €700.00 damages for breach of the
Appellant Landlord`s obligations under the Act and in particular Section 12 (1) (a)
thereof by unlawfully interfering with the Respondent Tenant`s right to peaceful and
exclusive occupation plus €250.00 damages for breach of the Appellant Landlord`s
obligations under the Act and in particular Sections 12.1. (b) with regard to the
standard and maintenance of the dwelling, in respect of the tenancy in the dwelling at
10 Dempsey Terrace,Wexford.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
25 July 2016.
Signed:
Louise Moloney Chairperson
For and on behalf of the Tribunal.