Tenant’s Obligations

Obligations of tenants.

16.—In addition to the obligations arising by or under any other enactment, a tenant of a dwelling shall—

a) 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 F36 [ tenancy agreement ] on the date it falls due for payment, F37 [  ]

(ii) where the lease or tenancy agreement provides that any charges or taxes are payable by the tenant, pay those charges or taxes in accordance with the lease or tenancy agreement (unless provision to that effect in the lease or tenancy agreement is unlawful or contravenes any F36 [ other enactment), and ]

F38 [ (iii) the deposit, if any, provided for under the tenancy agreement, ]

b) ensure that no act or omission by the tenant results in there not being complied with the obligations of the landlord, under any enactment, in relation to the dwelling or the tenancy (and in particular, the landlord’s obligations under regulations under section 18 of the Housing (Miscellaneous Provisions) Act 1992),

c) allow, at reasonable intervals, the landlord, or any person or persons acting on the landlord’s behalf, access to the dwelling (on a date and time agreed in advance with the tenant) for the purposes of inspecting the dwelling,

d) 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, under any enactment,

e) allow the landlord, or any person or persons acting on the landlord’s behalf, reasonable access to the dwelling for the purposes of allowing any works (the responsibility for the carrying out of which is that of the landlord) to be carried out,

f) 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,

g) if paragraph (f) is not complied with, take such steps as the landlord may reasonably require to be taken for the purpose of restoring the dwelling to the condition mentioned in paragraph (f) or to defray any costs incurred by the landlord in his or her taking such steps as are reasonable for that purpose,

h) not behave within the dwelling, or in the vicinity of it, in a way that is anti-social or allow other occupiers of, or visitors to, the dwelling to behave within it, or in the vicinity of it, in such a way,

i) not act or allow other occupiers of, or visitors to, the dwelling to act in a way which would result in the invalidation of a policy of insurance in force in relation to the dwelling,

j) if any act of the tenant’s, or any act of another occupier of, or visitor to, the dwelling which the tenant has allowed to be done, results in an increase in the premium payable under a policy of insurance in force in relation to the dwelling, pay to the landlord an amount equal to the amount of that increase (“the increased element”) (and that obligation to pay such an amount shall apply in respect of each further premium falling due for payment under the policy that includes the increased element),

kF39 [ subject to section 3A(4) (inserted by section 4 of the Residential Tenancies (Amendment) Act 2015), not assign or sub-let ] the tenancy without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold),

l) not alter or improve the dwelling without the written consent of the landlord which consent the landlord—

(i) in case the alteration or improvement consists only of repairing, painting and decorating, or any of those things, may not unreasonably withhold,

(ii) in any other case, may, in his or her discretion, withhold,

m) not use the dwelling or cause it to be used for any purpose other than as a dwelling without the written consent of the landlord (which consent the landlord may, in his or her discretion, withhold), and

n) 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.

Annotations

Amendments:

F36

Substituted (9.07.2021) by Residential Tenancies (No. 2) Act 2021 (17/2021), s. 5(a), (c), commenced on enactment.

F37

Deleted (9.07.2021) by Residential Tenancies (No. 2) Act 2021 (17/2021), s. 5(b), commenced on enactment.

F38

Inserted (9.07.2021) by Residential Tenancies (No. 2) Act 2021 (17/2021), s. 5(d), commenced on enactment.

F39

Substituted (7.04.2016) by Residential Tenancies (Amendment) Act 2015 (42/2015), s. 4(3), S.I. No. 151 of 2016.

F40

Substituted by Residential Tenancies (Amendment) Act 2015 (42/2015), s. 24(a), (b), not commenced as of date of revision.

F41

Inserted by Residential Tenancies (Amendment) Act 2015 (42/2015), s. 24(c), not commenced as of date of revision.

Modifications (not altering text):

C13

Prospective affecting provision: paras. (m) and (n) amended and para. (o) inserted by Residential Tenancies (Amendment) Act 2015 (42/2015), s. 24, not commenced as of date of revision.

m) not use the dwelling or cause it to be used for any purpose other than as a dwelling without the written consent of the landlord (which consent the landlord may, in his or her discretion, F40 [ withhold), ]

n) 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 F40 [ dwelling, and ]

F41 [ (o) where a deposit referred to in section 12(1)(d) has been paid to the landlord by the tenant, for the purpose of the effecting, by the Board, the return of the deposit to the tenant subject to the conditions specified in section 12(4) and ascertaining, for the purpose of such return, if a default referred to in section 12(4) is to be taken into account 

(i) to respond to the notification of the Board that relates to the return of the deposit in accordance with this Act,

(ii) to provide information, in accordance with this Act, to the Board of any such default, and

(iii) to notify the Board, as soon as practicable, of his or her address for correspondence when the tenancy has ended. ]

C14

Application of para. (k) restricted (19.08.2021) by Affordable Housing Act 2021 (25/2021), s. 32(4)(b), S.I. No. 424 of 2021.

Application of Act of 2004

32.— …

(4) Subject to subsection (5), a tenant of a cost rental dwelling shall not assign or sub-let the cost rental tenancy and— …

(b) section 16(k) of the Act of 2004 shall not apply to a cost rental tenancy.

Section 16 :interpretation and supplemental.

17.—(1) In section 16 

“alter or improve”, in relation to a dwelling, includes—

a) alter a locking system on a door giving entry to the dwelling, and

b) make an addition to, or alteration of, a building or structure (including any building or structure subsidiary or ancillary to the dwelling),

“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,

b) engage in behaviour that causes or could cause fear, danger, injury, damage or loss to any person living, working or otherwise lawfully in the dwelling concerned or its vicinity and, without prejudice to the generality of the foregoing, includes violence, intimidation, coercion, harassment or obstruction of, or threats to, any such person, or

c) engage, persistently, in behaviour that prevents or interferes with the peaceful occupation—

(i) by any other person residing in the dwelling concerned, of that dwelling,

(ii) by any person residing in any other dwelling contained in the property containing the dwelling concerned, of that other dwelling, or

(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 dwelling.

(2) The reference in section 16(b) to an act or omission by the tenant shall be deemed to include a reference to an act or omission by any other person who, at the time of the doing of the act or the making of the omission, is in the dwelling concerned with the consent of the tenant.

(3) The landlord shall be entitled to be reimbursed by the tenant any costs or expenses reasonably incurred by him or her in deciding upon a request for consent in relation to the tenant’s doing a thing referred to in paragraph (k), (l) or (m) of section 16 (whether the consent is granted or refused).

(4) If the amount of the premium referred to in section 16(j) is, apart for the reason mentioned in that provision, subsequently increased or reduced then the reference in that provision to the increased element shall be construed as a reference to the amount concerned as proportionately adjusted in line with the increase or reduction.

No contracting out from terms of section 12or 16 permitted, etc.

18.—(1) Subject to subsections (2) and (3), no provision of any lease, tenancy agreement, contract or other agreement (whether entered into before, on or after the commencement of this Part) may operate to vary, modify or restrict in any way section 12or 16.

(2) Subsection (1) does not prevent more favourable terms for the tenant than those that apply by virtue of section 12being provided for in the lease or tenancy agreement concerned.

(3) Obligations additional to those specified in section 16may be imposed on the tenant by the lease or tenancy agreement concerned but only if those obligations are consistent with this Act.

 

Cases

Keenan v Beyers

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1014-000888 / Case Ref No: 0714-13139
Appellant Landlord: Barry Keenen, Derek Breaghy
Respondent Third Party: Mick Beyers, Catriona McBride, Gerry Brennan,
Tony Shevlin, Karen McGeough
Address of Rented Dwelling: 40 Barrack Street, Dundalk, Co. Louth.
Tribunal: Patricia Sheehy Skeffington (Chairperson)
John Tiernan, Finian Matthews
Venue: Tribunal Room, PRTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2.
Date & time of Hearing: 24 February 2015 at 2:30
Attendees: Barry Keenen, First Named Appellant Landlord
Derek Breaghy, Second Named Appellant Landlord
Mick Beyers, Respondent Third Party (Treasurer of
the Residents’ Association),
Catriona McBride, Second Named Respondent
Third Party
Gerry Brennan, Third Named Respondent Third
Party (Chair of the Residents’ Association)
In Attendance: Gwen Malone Stenographers
1. Background:
On 11 July 2014 the Third Parties 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 4 September 2014. The Adjudicator determined
that the Respondent Landlords should pay the total sum of €6000 to the Third Parties,
split between them in differing shares, as a consequence of the Landlords’ breach of duty
owed to certain third parties in failing to enforce the obligations of the tenants under the
tenancy.
Subsequently the Landlords applied to appeal against the Adjudicator’s determination,
which application was received on 20 October 2014. The application was approved by the
Board on 7 November 2014.
The PRTB constituted a Tenancy Tribunal and appointed Patricia Sheehy Skeffington,
John Tiernan and Finian Matthews as Tribunal members pursuant to Section 102 and
103 of the Act and appointed Patricia Sheehy Skeffington 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 February 2015 the Tribunal convened a hearing at Tribunal Room, PRTB, Floor 2,
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:
Email/incident report from Garda Eugene Collins of 5 February 2014.
4. Procedure:
The Chairperson asked the Parties to identify themselves and to identify the capacity in
which they were attending the Tribunal. The Chairperson confirmed that the Third Parties
who were present had the authority to represent the Third Parties who were not in
attendance. The Chairperson 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 Appellant Landlords in this case)
would be invited to present their case first; that there would be an opportunity for crossexamination
by the Respondent Third Parties; that the Respondent Third Parties would
then be invited to present their case, and that there would be an opportunity for crossexamination
on behalf of the Appellant Landlord. The Chairperson explained that
following this, both parties would be given an opportunity to make a final submission. The
Chairperson clarified that Tribunal was a fresh hearing of the case and while it had regard
to the Adjudicator’s report, it was not bound by it and the parties were required to adduce
their evidence afresh to the Tribunal.
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.
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 were also informed that the Tribunal would hear evidence relevant to the
tenancy in dispute and that prior tenancies were not relevant to the dispute before the
Tribunal.
The Parties intending to give evidence were then sworn in.
5. Submissions of the Parties:
The following issues arose between the parties:
1. Whether the tenants or their visitors had engaged in anti-social behaviour within the
dwelling or in the vicinity of it within the meaning of the Residential Tenancies Act;
2. Whether the Respondent Third Parties had communicated with the relevant parties to
the tenancy prior to referring their dispute to the PRTB.
3. Whether the Appellant Landlords breached their obligations to the third parties in
failing to enforce the obligations of their tenants under the tenancy;
A preliminary issue arose. Whereas two tenants had been named on the Respondent
Third Parties’ Application form, the given address was 40 Barrack Street. The Second
Named Appellant Landlord argued that only one of the named tenants, Mr Thomas
McDonagh, was the tenant of that address. He said that the other tenant named resided
in the adjacent dwelling subject of a separate tenancy at 40a Barrack Street. He argued
that this tenancy was not properly before the Tribunal and should not fall within its remit.
The Tribunal indicated that it would hear submissions from both parties on this and make
a determination on the basis of those submissions, such that the parties would be fully
aware of the scope of the issues upon which they were being called to adduce evidence.
The Second Named Appellant Landlord said that the dwellings were separate, selfcontained
units in the same building. He said that building was on a corner of a street and
a laneway and as such the front doors of the two dwellings opened out onto two
perpendicular streets. He said that they had separate letter boxes and door numbers
affixed to them. Upon questioning as to how they both had addresses on Barrack Street if
their front doors opened onto different streets, the Second Named Appellant Landlord
stated that he was not responsible for the address which the dwellings had been given.
Upon further questioning he said that access to the dwelling at 40a could not be gained
by going through the front door at number 40, although from the front door at number 40
you could go through a passageway into the yard, which was shared with number 40a.
The First Named Third Party stated that their complaint was in respect of both dwellings
and their complaint had proceeded on this basis up to this point. The Second Named
Third Party said that the tenants were often visitors to each others’ dwellings, but that she
was aware that they lived in two separate apartments.
The Tribunal determined that as the application form referred to only one dwelling at
number 40 Barrack Street it was the tenancy which was subject of the day’s hearing. Full
reasons are set out below in the Findings Section of this report. The Tribunal noted
however that insofar as the tenant of the adjacent dwelling was a visitor at number 40,
any alleged behaviour on his part could be taken into account. It further noted that its
determination in this regard was without prejudice to any parties’ right to apply for dispute
resolution in respect of other tenancies.
Whether the tenants or their visitors engaged in anti-social behaviour within the
dwelling or in the vicinity of it within the meaning of the Residential Tenancies Act:
The Second Named Appellant Landlord said that at the commencement of the tenancy,
he had discussed the tenant with the Second Named Third Party and that she had agreed
with him that the tenant should be given a chance. The Second Named Appellant
Landlord stated that the tenant was a man in his sixties who did not drink, was placid and
not abusive and thus he did not believe that the events and actions described by the
Third Parties were attributable to him. He said that the tenant was a polite individual and
that he had, on the whole, been a good tenant.
The Second Named Appellant Landlord described certain of the complaints as trivial. In
particular he noted that the complaint that the front door was left open did not constitute
anti-social behaviour and that for a country person it was quite a normal thing to do. He
also rejected that the tenant had engaged in anti-social behaviour by staring out the
window at the Second Named Third Party. He said that the position of the television in the
front room may have made it appear as if he was looking out of the window but that in
any event, looking out of the window was not anti-social behaviour.
The Second Named Appellant Landlord stated that certain of the complaints that he had
received were about the number of visitors that the tenant had received in the house. He
said that the tenant was entitled to have visitors and that he would not evict a person for
exercising his or her right to have visitors. He said that when he had visited the dwelling
there were no visitors there.
The Second Named Appellant Landlord stated that he had received phone calls from the
Second Named Third Party, whose house shared a party wall with the subject dwelling, in
respect of arguments and noise emanating from the dwelling. He did not accept the
assertions made that the tenant was ‘out of his head’ however, referring to his
teetotalism. The Second Named Appellant Landlord said that when he was at the
dwelling talking to the tenant the issues complained of were not apparent to him. He
agreed that he had only been there during the day and had not visited at night time.
The Second Named Appellant Landlord said that he was surprised about complaints
about arguments and thought, at the time, that they were out of character for the tenant.
He also queried the degree to which a person having an argument in their own home was
anti-social behaviour.
The Second Named Appellant Landlord said that certain events which occurred towards
the end of the tenancy were unacceptable, including a fight on the street and an incident
in which a naked woman and two other people were sitting outside the dwelling. He said
that these incidents had instigated the termination of the tenancy.
The Second Named Appellant Landlord disputed whether a number of the incidents
which were reported had in fact occurred in the vicinity of the dwelling, given that it was
on thoroughfares which lead to a Simon Community shelter. He asserted that a number
of the incidents which were being attributed to the tenancy could equally be attributable to
persons frequenting that facility or potentially to people coming home from the two nearby
public houses late in the evening.
The First Named Third Party stated that the road on which the dwelling was situated was
a well settled community of 93 houses and the only problem house was number 40. She
highlighted newspaper clippings of court proceedings referring to a person with the same
address. The Tribunal noted that it was only able to deal with civil matters that occurred at
or in the vicinity of the dwelling as other matters were outside its jurisdiction. The First
Named Third Party referred to a Garda summary of incidents and an email of an incident
report submitted on the day. The email related a Garda-recorded incident of anti-social
behaviour by the tenant in October 2014.
The First Named Third Party referred to a log of incidents arising in the first week of
October 2014, including the tenant allegedly assaulting a person, the tenant shouting at
his brother who was intoxicated outside the dwelling, and an altercation between a
woman and the tenant. The First Named Third Party stated that this log was illustrative of
the type of activity that had been occurring on an ongoing basis at the dwelling.
The Second Named Third Party stated that the last week of the tenancy, being the first
week of October 2014, was a particularly bad week but that there had been weeks like
that during the tenancy. She said that there had been noise from the dwelling which
included the noise of arguments and banging around the dwelling. In her log for the
period of the tenancy there were entries relating to staring in an intimidating manner,
noise, the door of the dwelling being left open and people coming and going, visitors
leaving the dwelling in a noisy fashion, some leaving during the night time in an
intoxicated fashion and visitors rowing both inside the dwelling and on the street outside
it. She said the noise from the people inside the dwelling was not that resulting from a
party but came from people shouting and arguing.
The First Named Third Party said that she lived at the other end of the street to the tenant
but that the noise carried. She said that the tenant had insulted her when she walked past
the dwelling on one occasion in summer of 2014. She said that she had witnessed
persons at the front door of the dwelling at 2.30am in an intoxicated state. She said that
she associated the public intoxication and urination on the street with no other property
than the one at issue in the proceedings.
The First Named Third Party said that the Fourth Named Third Party lived a few doors
away from the dwelling. The Second Named Third Party said that the Fifth Named Third
Party lived next door to her and that she would have heard and witnessed anti-social
behaviour. The Tribunal read letters on file from the Fourth Named Third Party in which
he complained of events from 2005.
The Third Named Third Party said that he lived on the far side of the street and that he
had had involvement with the brother of the tenant, having offered him a blanket at one
point. He said later the tenant had thrown a bottle at 38 Barrack Street. The Third Named
Third Party said that he had not seen the tenant’s brother coming from the dwelling at this
point but asserted that he was always there.
The Second Named Appellant Landlord disputed the Third Parties’ contention that the
dwelling was the only property the residents’ association had a problem with. He said that
problems also came from the Simon Community shelter which was further down the road.
He quoted from a newspaper article in which the local Residents Group had organised a
meeting at which they had voiced their complaints about the Simon Community facility.
The First Named Third Party stated that many of the issues with the Simon Community
had been resolved since this intervention. She stated that there were a number of issues
in the area, which she had highlighted in her correspondence. She said that this included
an abandoned development which was close to the street in question which was used as
a hub for anti-social behaviour. However she maintained that the dwelling in question was
another hub to which people travelled from the abandoned building or the Simon
Community and that these visits were frequent and disturbing.
Whether the Respondent Third Parties had communicated with the relevant parties
to the tenancy prior to referring their dispute to the PRTB:
The Second Named Appellant Landlord asserted that, according to the PRTB website, a
referrer of a dispute to the PRTB which revolved around a landlord not enforcing the
obligations of their tenants had to first take all reasonable steps to communicate with the
parties to the tenancy. He said that in circumstances in which he had only had real
contact from the Second Named Third Party for the duration of the tenancy, only she had
the entitlement to take the dispute. The Second Named Appellant Landlord said that the
frequency of her texts or calls was approximately once per month over the course of the
15-month tenancy. He reviewed the texts that he had received, which related to an
argument, a woman shouting inside the dwelling, and a person urinating on the street.
The Second Named Appellant Landlord stated that he had never met the Third and Fifth
Named Third Parties prior to their attendance at the PRTB. He said that he had last
talked to the Fourth Named Third Party approximately five years ago. The First Named
Appellant Landlord said that he had talked to the Fourth Named Respondent Third Party
who had complained to him about drugs in the dwelling, but he said that upon following
this up with the Gardai he learned that no drugs had been found in the dwelling.
The Second Named Appellant Landlord said that he had never met the First Named Third
Party before meeting her at the PRTB and that she had not communicated directly to him.
The Second Named Appellant Landlord said that he had received a letter dated 29 May
2014 from the First Named Third Party which was addressed to a local politician and
which he was copied onto. He said that he had first asked the Second Named Third Party
for the telephone number of the First Named Third Party but that she had not got her
number. The Second Named Appellant Landlord said that he replied to the letter by email
dated 30th May 2014 a copy of which was submitted in evidence, which email was not
responded to and receipt of which was denied by the First Named Third Party, albeit he
pointed out every other email he had sent to that address had been received. He said that
it was within six weeks of this letter (which he had responded to) that the application to
the PRTB was made.
The Second Named Appellant Landlord stated that the complaints made at the PRTB
were more extreme than the complaints that had been initially made to him. He said that
there were some events, particularly at the end of the tenancy which he could not stand
over but he said that he had acted on them. He said that he had initially heard about the
fight in the street and the naked lady outside the dwelling at the PRTB adjudication.
The Appellant Landlords stated that they were aware of the issues in respect of the bins.
They said that they had offered a rate of rent which was inclusive or exclusive of refuse
collection charges and the tenant had chosen the lower rent. The Appellant Landlords
stated that they had provided an indoor bin but there had not been one provided for
outdoors, as they found in previous tenancies it simply filled up and was not emptied.
On cross examination, the Second Named Appellant Landlord was asked to review the
incident log submitted in the case file. He noted that it ran prior to the tenancy in question,
and stated that many of the incidents were logged but did not illustrate that any
communication had been made to the Appellant Landlords in respect of the incidents.
The Second Named Third Party stated that her texts and communications to the
Appellant Landlords were more frequent than once per month, stating that it was perhaps
weekly that she texted him. She said that she did not like ringing the Appellant Landlords
as they had the view that she had it in for the tenants. She said that during the tenancy
and historically there had never been a satisfactory response from the Appellant
Landlords. She said that she would have phoned each of the Appellant Landlords about
her complaints. She said that she had not logged each time that she had telephoned the
Appellant Landlords. The Second Named Third party was questioned as to whether this
was tenable given the nature of the log and its detail: she said she did not think the matter
would end in the dispute as it had done.
The Second Named Third Party was asked whether she had addressed her concerns
directly with the tenant. She said that she did at the beginning and was willing at that
point to give the tenant a chance as she said that he presented in a plausible situation.
The Second Named Third Party said that she had initially told the tenant when the noise
was too loud and he said that he would sort it out, but that the behaviour continued and
got worse.
The First Named Third Party explained that she acted on behalf of the residents
association, which had decided to approach the issue in the way it had due to previous
contact with the Appellant Landlords in respect of previous tenancies. The Tribunal noted
that previous tenancies would not be taken into account in the current dispute; the First
Named Third Party stated that she referred to previous episodes to contextualise the
approach taken. She said that the view of the Residents Association was that the
Appellant Landlords did not engage with them and therefore they had sent the letter of 29
May 2014 to the politician and copied it to number of other people, including the Director
of the PRTB and the Appellant Landlords. She said that she had posted the letter. The
First Named Third Party stated that she had not received any email in response to this
letter from the Appellant Landlords.
The First Named Third Party stated that a response was elicited from the PRTB and that
it had responded by sending a pack including an application for dispute resolution. She
said that the Residents Association decided that they would take this option. She referred
to communications she had with the Appellant Landlords in respect of an agreement that
the Residents Association were seeking, and stated that what they needed was a
qualitatively different type of tenant who was aware of their obligations under the law.
Whether the Appellant Landlords breached their obligations to the third parties in
failing to enforce the obligations of their tenants under the tenancy:
The Second Named Appellant Landlord stated that he was not afforded the opportunity to
address the issues prior to the PRTB process, highlighting that he had responded to the
letter of 29 May 2014 but received no response to it. He further stated that he had
understood that the first stage of the PRTB was to be mediation, referring to section 95
and 97 of the Act in which mediation was stipulated as a first stage and in which the
adjudicator was posited as playing a role in assisting the parties in resolving their dispute.
He said that he was utterly shocked to get a determination order on foot of it, in particular
in that it ordered payments to people who had never been in contact with him previously.
He said that when a complaint was made by the Second Named Third Party he would call
the tenant and tell him to keep the noise down. However he said that he did not believe
that all of the complaints were serious, in particular the door being open and allowing
visitors being there. The Second Named Appellant Landlord stated that he did not text the
tenant as the tenant was unable to read or write, but that in retrospect he conceded that
he should have sent some written warnings to him about the complaints. He said that he
had talked to him however.
The Second Named Appellant Landlord said that he had also talked to the Gardai about
the issue, in particular to seek that they refer any complaint to him and to enquire as to
the probity of placing CCTV around the dwelling.
The Second Named Appellant Landlord said that certain of the issues arose from a
brother of the tenant who had alcohol problems and who had stayed in the dwelling. He
said that he was concerned that if he terminated the tenancy this person would be made
homeless. He highlighted a letter he had written to a local politician to address the plight
of this person.
The Second Named Appellant Landlord asserted that on foot of further complaints the
tenancy subject of this dispute had been terminated and a new tenant (who had been
sourced in consultation with the First Named Third Party) had taken up residence.
6. Matters Agreed Between the Parties
The tenancy commenced on 10 April 2013 and terminated in October 2014.
7. Findings and Reasons:
Finding One:
The Tenancy subject of this dispute was between Thomas McDonagh and the Appellant
Landlords, in respect of the dwelling at 40 Barrack Street, Dundalk, County Louth
Reasons:
1. For proper management of the hearing, the Tribunal determined this point during the
course of the Tribunal in order that the parties could adduce their evidence accordingly. It
set out preliminary reasons for its decision at the Tribunal, which reasons are further
extrapolated below.
2. It was common cause that although the application form named two persons as
tenants, the address at 40 Barrack Street, which comprised one dwelling only, and was
subject solely of Thomas McDonagh’s tenancy, was referred to on the application form.
3. The parties both gave evidence that the dwellings at 40 and 40a Barrack Street were
separate, self-contained units. The Tribunal accepted the Appellant Landlords’ evidence
that they had separate doors and letter boxes and were not directly linked in any fashion
in the interior of the building, and that they had separate front doors on different streets.
4. Under section 75(3) of the Act, a disagreement may be referred to the PRTB by
parties in respect of ‘the tenancy’. A landlord of a ‘dwelling’ owes to certain third parties
an obligation to enforce tenants’ obligations, where such third parties could be directly
and adversely affected: section 15. Third parties may refer a dispute in respect of ‘the
dwelling’ concerned: section 75(4)(e). A dwelling is defined in section 4 of the Act as ‘a
self-contained residential unit’. The self-contained nature of the dwelling leans towards an
interpretation of the dwelling and the tenancy in this context as being in the singular.
5. The Tribunal notes that the dispute resolution mechanisms within the PRTB have
developed to deal with dispute(s) relating to one tenancy of one dwelling at a time. In
order to administratively depart from this while preserving the rights of all affected parties,
great care and precision must be employed. The Tribunal notes that section 18(a) of the
Interpretation Act, 2005 allows for singular words to be interpreted as plural and vice
versa, and as such it is possible to envisage circumstances in which two linked tenancies
of the same landlord might be referred for dispute resolution by third parties complaining
of one landlord’s failure to enforce obligations of his or her tenants in more than one
adjoining tenancy through one combined application form. However such an application
form must clearly differentiate between the two tenancies, and in particular it must set out
which tenant is residing at which dwelling. This is because due process dictates that any
application, in particular where it complains of a tenant’s behaviour, must be forwarded by
the PRTB to that tenant concerned to give him or her the opportunity to respond to any
claims made against him or her. As the second tenant’s address is not on the form, the
Tribunal can have no confidence that this tenant was properly on notice of the complaint
made against him.
6. As such, the Tribunal proceeded in its normal form: that is, to consider the dispute in
relation to the tenancy of one dwelling, being 40 Barrack Street. The neighbouring
tenant’s behaviour was only considered insofar as he was at certain times a visitor of
Thomas McDonagh, the tenant of the dwelling noted on the application form.
Finding Two:
The tenant of the dwelling was responsible for anti-social behaviour within the meaning of
sections 17(1)(b) and 17(1)(c) of the Residential Tenancies Act.
Reasons:
1. Section 17(1)(c) of the Act is a definition of anti-social behaviour which includes
persistent behaviour that interferes with the peaceful occupation of persons residing in a
dwelling in the neighbourhood or vicinity of the dwelling subject of the tenancy. Section
17(1)(b) defines a different type of anti-social behaviour: It includes behaviour which
could cause fear to persons lawfully in the vicinity of the dwelling and includes acts of
violence and intimidation. Section 16(h) of the Act imposes an obligation on tenants, or
occupiers of the dwelling or visitors to it, to refrain from engaging in anti-social behaviour.
2. The Tribunal finds that the balance of evidence, accepted in part by the Appellant
Landlords in relation to the latter part of the tenancy, was that such anti-social behaviour
occurred in that shouting and rowing between the tenant and related parties within the
dwelling and spilling out on the street outside the dwelling. It finds that noisy entry and
exit from the dwelling late at night occurred in a manner which was regular and which
tended to interfere with the peaceful occupation of the neighbouring dwellings. This
constitutes anti-social behaviour as defined in section 17(1)(c) of the Act.
3. In making this finding, the Tribunal notes that elements of anti-social behaviour
outside the scope of this tenancy also arose in the vicinity of the dwelling, but for which
neither the tenant nor the Appellant Landlord can be held responsible.
4. The Tribunal further notes that certain elements of the behaviour complained of do
not constitute anti-social behaviour. In this regard it finds that leaving a door open and
looking out of a window do not constitute anti-social behaviour of any form.
5. The Tribunal further notes however that towards the end of the tenancy, further
incidents arose in what appears to have been an escalation of the issues. This included a
fracas on the street involving the tenant and his brother. The Tribunal finds that this
behaviour, characterised as unacceptable by the Appellant Landlord, fell under the
definition of anti-social behaviour as defined under section 17(1)(b) of the Act.
Finding Three:
The Second Named Respondent Third Party was directly and adversely affected by the
tenant’s anti-social behaviour and complied with all the procedural requirements of
section 77 of the Act.
Reasons:
1. In order for a Third Party to make a complaint to the PRTB in respect of a landlord’s
failure to enforce the obligations of his or her tenants (section 15 of the Act), the Third
Party must first comply with the conditions set out in section 77(2) of the Act. These are
firstly, that the Third Party must be directly and adversely affected by the breach alleged
in the complaint and secondly, they must have communicated or attempted to
communicate with all relevant parties to the tenancy subject of the complaint and have
taken all reasonable steps to resolve the matter.
2. In this case, direct evidence was heard of issues of anti-social behaviour adversely
and directly affecting the Second Named Third Party. No direct evidence of such adverse
effect on any of the other named Third Parties of the noise and disturbance was heard by
the Tribunal. The Tribunal does not accept that parties who live at a distance from the
dwelling were adversely affected by noise emanating from it. It is supported in this
conclusion by evidence of the Third Parties who were in agreement that the person who
lived directly adjacent to the dwelling was affected adversely. The Tribunal does not find
that being annoyed or concerned by events on the other side of the street or at some
distance down the road from it as described by the other Third Parties equates to the
adverse effect stipulated by this section.
3. The Tribunal further finds that the Second Named Third Party gave direct evidence
that she had contacted both the tenant and the Respondent Landlord in respect of the
behaviour she complained of. The Tribunal heard no evidence that any other Third Party
had addressed the behaviour with the tenant. As such only the Second Named Third
Party complied with the conditions set out in section 77(2) in order to maintain their
complaint against the Respondent Landlords for failing to comply with their obligations
under the Act.
Finding Four:
The Appellant Landlords were in breach of their obligations to the Second Named Third
Party to enforce the obligation of their tenant to refrain from engaging in behaviour that
was anti-social. The Tribunal awards €750 in damages to Catriona McBride for the
consequences of the Appellant Landlords’ breach of their obligations.
1. The Tribunal heard evidence from both the Appellant Landlords and the Second
Named Third Party that she had complained to them in respect of the behaviour of the
tenant of the dwelling.
2. The Tribunal notes that the Appellant Landlords had a concurrent obligation to
ensure that their tenant’s right to peaceful and exclusive occupation of the dwelling and
security of tenure, such that certain actions requested of them by the Third Parties were
rightly rebuffed.
3. However, the Tribunal also notes that the Appellant Landlords attended the dwelling
only at day time and did not take the complaints sufficiently seriously at the initial stages
of the tenancy. Further, the Appellant Landlords conceded that they had not warned the
tenant in writing of his behaviour, which they stated on reflection they should have done.
As such, the Tribunal finds that the Appellant Landlords failed to enforce the obligations
of their tenant in a satisfactory manner.
4. The Tribunal finds that the failure to enforce the obligation of the tenant to refrain
from engaging in anti-social behaviour caused inconvenience and disturbance to the
Second Named Third Party. The Tribunal accepts that she and her child were disturbed
by the noise and the nature of the noise, which had aggressive tones, that could be heard
in and emanating from the dwelling. However the Tribunal also notes that some of the
disturbance complained of derived from other sources. As such, the Tribunal measures
the damage suffered by the Second Named Third Party for the course of the eighteenmonth
tenancy at €750.
8. Determination:
Tribunal Reference TR1014-000888
In the matter of Barry Keenen, Derek Breaghy (Landlord) and Mick Beyers, Catriona
McBride, Gerry Brennan, Tony Shevlin, Karen McGeough (Third Party) the Tribunal
in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Landlords shall pay the Second Named Third Party (Catriona McBride)
the total sum of €750 in damages within 28 days of the date of issue of this Order for
the consequences for that Third Party of the Respondent Landlords’ failure to enforce
the obligations of their tenant of the dwelling at 40 Barrack Street, Dundalk, County
Louth.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 23/03/2015.
Signed:
Patricia Sheehy Skeffington Chairperson
For and on behalf of the Tribunal.

Dallat v Power

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001686 / Case Ref No: 0216-23905
Appellant Tenant: Daniel Dallat
Respondent Landlord: Colm Power
Address of Rented Dwelling: Alannah’s House, Killincarrig Manor, Greystones ,
Wicklow,
Tribunal: Mary Doyle (Chairperson)
Dervla Quinn, Thomas Reilly
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 24 May 2016 at 10:30
Attendees: Daniel Dallat (Appellant Tenant)
Terence Connelly (Witness)
Colm Power (Respondent Landlord)
Linda Power (Repondent Landlord)
In Attendance: DTI Stenographers
1. Background:
On 01 February 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 February 2016. The Adjudicator determined that:
1. The Notice of Termination served on 17 February 2016 by or on behalf of the
Applicant Landlord on the Respondent Tenant in respect of the tenancy of the
dwelling at Alannah’s House, Killincarrig Manor, Greystones, County Wicklow is
valid.
2. The Respondent 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 Order.
3. The respondent tenant shall pay the sum of €3,700.00 to the Applicant Landlord,
within 28 days of the date of issue of the Order, being rent arrears in respect of the
tenancy of the above Dwelling.
4. The Respondent Tenant shall continue to pay any further rent outstanding from 24
March 2016, at the rate of €1,850.00 per month or proportional part thereof at the
rate of €60.82 per day and any other charges as set out in the terms of the tenancy
agreement for each month or part thereof, until such time as he vacates the above
Dwelling.
5. The Applicant Landlord shall refund the entire of the security deposit of €1,850.00
to the Respondent 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 from the Tenant on 23 March 2016. The
grounds of the appeal are Breach of landlord obligations and Unlawful termination of
tenancy (Illegal eviction). The appeal was approved by the Board on 24 March 2016.
The RTB constituted a Tenancy Tribunal and appointed Dervla Quinn, Mary Doyle,
Thomas Reilly 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 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 24 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. 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 pointed out
that there was a stenographer present and that an audio recording is made to ensure the
accuracy of the final transcript. She stated that this audio transcript is not retained but
that a copy of the final transcript can be made available to the parties for a fee from DTI
Stenographers with the consent of the RTB. She also explained that Tribunal hearings
are public. She explained the procedure which would be followed; that the Tribunal was a
formal procedure but that it would be held in as informal a manner as possible; that the
person who appealed (the Appellant) would be invited to present his case first including
the evidence of his witness; 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. She said that
members of the Tribunal might ask questions of both Parties from time to time.
The Chairperson explained that following this, the Parties would be given an opportunity
to make a final submission. She stressed that all evidence would be taken on oath or
affirmation and be recorded by the official stenographer present and she reminded the
Parties that knowingly providing false or misleading statements or information to the
Tribunal was an offence punishable by a fine of up to €4,000 or up to 6 months
imprisonment or both.
She 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 Ref section 123(3) RTA 2004.
She asked the Parties if they had any queries about the procedure. There were none
The Parties giving evidence were then sworn in / affirmed
5. Submissions of the Parties:
Appellant Tenant’s Submission
The Tenant stated that he was appealing the adjudicators decision on two grounds:-.
Breach of Landlord’s Obligations and Illegal Termination.
The Tenant began his evidence by stating that the tenancy commenced in April 2014. In
September 2014 he asked the Landlord to do some repairs notably to repair the shower
in the ensuite bathroom. The tenant stated that it took four weeks to carry out this repair.
In October 2014 he noticed noises in the roof of the property and between October and
January despite numerous requests to the Landlord nothing was done to remedy this
situation. The Tenant stated that he had employed a roofing contractor from Greystones
to inspect the roof and to give a quotation to remedy the problem and the roofer stated
that it would cost in the region of €100 – €150 to fix the roof. When asked by the Tribunal
if he had informed the Landlord about this inspection he said he had done so through the
Landlord’s agent. He further stated that the Landlord’s agent had inspected and had
confirmed that there was a noise. Unfortunately he was unable to provide written
confirmation of this.
The Tenant stated that the Landlord had objected to his installing an inflatable hot tub just
outside the back door of the dwelling. He stated that he stopped paying rent in January
2016 and had not paid any further rent to the Landlord. The Landlord issued a 14 Day
Warning Notice on 25 January 2015.
On 1st. February 2016 the Tenant gave a 28 notice stating that he was vacating
When questioned by the Tribunal about the non payment of rent and arrears of rent he
stated that he did not pay the rent as the property was not fit for purpose. He stated that
he was unable to use two bedrooms for five months due to the noise in the roof. It was
agreed between the Tenant and Landlord that the amount of rent outstanding is
€3127.26.
When cross examined by the Landlord about his roofing contactor’s report he could not
remember the name of the company he had used and could not comment as to why there
was no headed paper, no address no vat number etc. on the report.
The Tenant stated that an adjudication took place on 24 February 2016 and prior to the
issuing of the Determination Order from RTB he made an agreement with the Landlord to
move out on 15th. March 2016 on three conditions:-
1 That the Landlord withdraw his case from RTB
2 That The Landlord accept the deposit of €1,850 as full and final
payment for all arrears
3 That the Landlord provide the Tenant with a written reference
On or around the 11th. March the Determination Order issued and he stated that the
Landlord rescinded the agreement. He was extremely annoyed by this as he felt he had
offered an olive branch to the Landlord. He then advised the Landlord and the Landlord’s
agent that he would not be moving out on 15th. March 2016. Following on from this the
second named Landlord called to the house and spoke to the Tenant’s witness. She
appealed to them to vacate as she said that they had two mortgages to pay and had four
children and that the entire matter was very upsetting for her and her family.
With regard to the illegal termination he stated on 15th. March 2016 he arrived at the
property with the witness and a friend and the locks were changed on the property. Even
though he had not slept in the property for the previous 4 nights and that he was in his
own words nearly “100% vacated” and that more or less all his furniture and items were
removed, there was medication in the dwelling that he needed. He stated that he
accessed the property via an open upstairs window and vacated by the front door.
Respondent Landlord’s Submission
The Landlord in his direct evidence stated that the Tenant had advertised his property on
AirBnB without his consent and the Tenant breached his obligations by so doing. He
further explained that he felt that the relationship broke down at this stage.
The Landlord and the Tenant then questioned whether or not the Tribunal intended to
deal with the issue of the alleged illegal eviction on 15 March 2016. The Tenant informed
the Tribunal that he had lodged a separate dispute application with the RTB regarding the
actions of the Landlord on changing the locks on 15 March 2016. The Tribunal noted that
the Landlord had lodged a dispute application on 1 February 2016 claiming rent arrears,
overholding and breach of tenant’s obligations.
The matter was heard at adjudication on 24 February 2016. The Tenant had lodged an
appeal on 23 March 2016 to the adjudicators findings and in his appeal he included a
claim for “Unlawful termination of tenancy illegal eviction”. The Tribunal stated that they
could if requested by the parties, consider the Tenant’s claim for unlawful termination and
illegal eviction. The Tribunal explained to the parties that, if they considered the question
of whether or not an illegal eviction had taken place, it would not be possible for the same
issues to be considered at a subsequent tribunal as to do so would be in breach of the
legal principle of “res judicata” namely a matter that has been considered by a competent
court may not be pursued further by the same parties. The Tribunal asked that the
Parties take fifteen minutes to consider their respective positions on the matter. On
reconvening the Landlord and the Tenant both confirmed that they wished the
circumstances surrounding the ending of the tenancy on 15 March 2016 to be dealt with
by the Tribunal. The Tenant confirmed his understanding that this would result in his
separate application to the RTB being unable to proceed.
The Landlord continued with his evidence and stated that he had to order a part for the
shower from the UK and this took two weeks. The repair was then attended to in a
speedy manner. He further stated that he dealt with the issue of ant infestation and the
replacement of a dryer in a very timely manner. With regard to the roof he informed the
Tribunal that he had employed 3 separate consultants to deal with the Tenant’s
complaints – two were roofing contractors and one was a civil engineer. All three
inspected the roof at different times. All found the roof to be in a good condition. He
further stated that he had replaced the fascia and soffit boards and aluminum guttering
the previous summer at a cost in the region of €800 and he produced receipts for this
work. .
He stated that he had let the property for seven years and never had any problems. He
spent over €1,000 on the reports to deal with the complaint about the roof.
He did enter into an agreement with the Tenant with regard to vacating on 15th. March.
However he stated that this was subject to the condition of the property being in pristine
condition upon a final inspection. He stated that they were prepared to take a loss and
that he had a huge issue with giving a reference.
On or around 10th. March 2016 The Landlord received a text from the Tenant stating that
they were sitting it out and not moving and that it would cost them ( The Landlord) money.
The Landlord submitted that on or around 11th. March the second named Landlord did
call to the house and spoke with the Tenant’s witness and asked him why they were not
moving as agreed. She stated that the witness was extremely pleasant and offered to
make her tea as she was extremely upset. However the witness telephoned the Tenant
and the Tenant shouted at her on the phone and told her to leave the property.
The Landlord stated that on 11th/12th and 13th. March the second named Landlord went
to the property and looked in and he stated that there was nothing left in the house.
On 15th. March 2016 The first named Landlord arrived at the house in the morning and
found it empty. On the second visit on 15th. March he found the locks broken. He called
the Guards and a locksmith and the locksmith changed the locks.
The Landlord then stated that the property was left in a very poor condition. He stated
that the Tenant had a dog which scratched the wooden floors in the bedroom. There is a
smell of dog in the house and the house needed to be painted and cleaned and carpets
shampooed to remove this smell. He submitted invoices to the Tribunal as follows:-
Painting and Decorating the inside of the house €510.75
Cleaning of marble floors in kit and bathroom €525.00
Cleaning and carpet cleaning €310.00
Cleaning of stonework €950.00
To sanding of bedroom floors to remove deep
Scratches €575
He explained to the Tribunal that because of the expense he only had the first three items
in the list dealt with i.e. painting and decorating, cleaning of marble floors and cleaning
and carpet cleaning. This amounted to €1,345.75. They could not afford to have the
stonework or sanding of bedroom floors done.
6. Matters Agreed Between the Parties
The Tenancy commenced on the 24/4/2015
The address of the subject property is Alannah’s House, Killincarrig Manor, Greystones,
Co. Wicklow
The rent was €1,850 per month
A deposit of €`1,850 was paid to Landlord
Arrears of rent in the sum of €3,127.26 are owing
The Landlord retains the deposit
The tenant has vacated the dwelling
7. Findings and Reasons:
6. Findings of the Tribunal and Reasons Therefor:
Having considered all the documentation before it and having considered the evidence
presented to it by the parties, the Tribunal’s findings are set out hereunder
Finding 1
The Tribunal finds that the Landlord changed the locks on 15th. March 2016 thus causing
an unlawful termination of the tenancy.
Reason:
The Tenant initially agreed with the Landlord that he would move out on 15th. March but
had rescinded this offer. The Adjudicator ‘s Determination Order issued by the
Residential Tenancies Board determined that the tenant was to move out on 24th. March
2016
Finding 2
The Landlord was not in breach of Landlord’s Obligations under section 12(1)(b) (ii)of the
Act.
Reasons
The Tribunal accepted the evidence of the Landlord that he carried out repairs in a
speedy manner. He produced three different written reports from competent contractors
all stating that the roof was in good condition and the Tribunal was satisfied that the delay
in fixing the shower was caused by the late delivery of parts. .
Finding 3
The Tribunal finds that the Tenant was in breach of his obligation under section 16(a) of
the Act and that this breach caused difficulties to the Landlord.
Reason
Under sub section (a) (i) of section 16 of the Act, a tenant must pay to the Landlord the
rent provided for under the tenancy agreement on the date it falls due for payment. In
failing to pay the rent the Tenant was in breach of this requirement.
It was agreed between the parties that €3,127.26 was owing . For the sake of clarity the
following is breakdown of the amount owing: – the Tenant had paid rent up until 23rd.
January. Rent of €1,850 was due on 24th January which was not paid and there was
€1,277.26 due for 21 days at €60.82 per day up to and including 15th. March . The total
amount due is €3,127.26
Finding 4
The Tribunal finds that the Tenant was in breach of his obligations under section 16(f) of
the Act.
Reason
Under subsection (f) of section 16 of the Act a tenant must not do anything that would
cause deterioration in the condition a dwelling was in at the commencement of a tenancy
disregarding any deterioration owing to normal wear and tear.
The Landlord produced photographic of deep scratches to the wooden floors and The
Tribunal is satisfied that these deep scratches on the wooden floors were caused by a
dog. The Tribunal also accepted that as there was a dog in the premises there was a
need for deep cleaning of the house and shampooing of carpets.
8. Determination:
Tribunal Reference TR0316-001686
In the matter of Daniel Dallat (Tenant) and Colm Power (Landlord) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
The Tenant shall pay to the Landlords the sum of €2,773.01 comprised of rent
arrears of €3,127.26 together with € 200 damages for breach of Tenant’s obligations
pursuant to section 16(a) of the Act and € 1,395.75 damages for breach of Tenant’s
obligation pursuant to section 16(f) of the Act less €100 for damages for unlawful
termination of the Tenancy and less the sum of €1,850 being the justifiably retained
security deposit in respect of the dwelling at Alannahs House,Killincarrig
Manor,Greystones,Wicklow.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
01 June 2016.
Signed:
MaryDoyle Chairperson
For and on behalf of the Tribunal.

Deep v Moylett

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0315-001079 / Case Ref No: 0115-16011
Appellant Tenant: Krishan Deep
Respondent Landlord: Susan Moylett
Address of Rented Dwelling: 150 Cooley Road, Drimnagh , Dublin 12, D12YX24
Tribunal: John Tiernan (Chairperson)
Vincent P. Martin, Gene Feighery
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 05 August 2015 at 10:30
Attendees: Charles White, Tribunal Representative;
Emily Szalak, Tribunal Representative;
Krishan Deep, Tribunal Appellant, Tenant;
Manmeet Singh (Support/observer on behalf of the Appellant Tenant);
Krishan Kant (Support/observer on behalf of the Appellant Tenant).
In Attendance: Gwen Malone Stenographers
1. Background:
On 02/01/2015 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 04/02/2015. The Adjudicator determined that
1. The Notice of Termination served on 4th December 2014, by the Respondent Landlord on the Applicant Tenant, in respect of the tenancy of the dwelling at 150 Cooley Road, Drimnagh, Dublin 12, is valid.
2. The Applicant Tenant shall vacate and give up possession of the above dwelling within 7 days of the date of issue of the Order.
3. The Applicant Tenant shall pay the total sum of €100 to the Respondent Landlord, within 7 days of the date of issue of the Order, being damages for the Applicant Tenant’s breach of his obligations under the lease, in failing to notify the Landlord of the identity of the other occupants, in respect of the tenancy of the above dwelling.
4. The Applicant Tenant shall also pay any further rent outstanding from 4th February 2015 (date of the hearing), at the rate of €1150 per month, or proportionate part thereof at the rate of €37.80 per day, unless lawfully varied, and any other charges as set out in the terms of the tenancy agreement for each month or part thereof, until such time as he vacates the above dwelling.
5. The Respondent Landlord shall refund the entire of the security deposit of €1150 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 18/03/2015. The grounds of the appeal: Breach of fixed term lease, Deposit retention, Invalid Notice of termination, Rent arrears and overholding ; Approved by the Board on 31/03/2015.
The PRTB constituted a Tenancy Tribunal and appointed Vincent P. Martin, John Tiernan, Gene Feighery 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 12/06/2015 the Parties were notified of the constitution of the Tribunal and provided with details of the date, time and venue set for the hearing.
On 05/08/2015 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the 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 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 requested to refer 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’s Agents; that the Respondent Landlord’s Agents 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 he reminded the Parties that knowingly providing false or misleading statements or information to the Tribunal was an offence punishable by a fine of up to €4,000 and/or up to 6 months imprisonment.
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 Tenant
The Appellant Tenant gave evidence that on 24th June 2014 he and two other persons, namely Jose Ramon Arvelo Perera and Carlos Eduardo Daly Aurenty entered in to the tenancy on foot of a written lease agreement for a fixed term of 12 months. He said that he had paid the security deposit of €1,150 on behalf of all three tenants. He said that in October 2014 his two co-tenants wished to leave the tenancy and that he spoke with the second named Agent on behalf of the Respondent Landlord and that this was conveyed to her. He said that she informed him that under the terms of the agreement he would then be liable to pay the full amount of the monthly rent. He confirmed to the Tribunal that subsequently the full rent of €1,150 was paid on 25th October 2014 and a further €1,150 was paid on 26th November 2014. He further confirmed to the Tribunal that there was no refund of any deposit amount to the two departing co-tenants.
He said that two new persons were brought in to the dwelling in place of the original co-tenants at different times in late October 2014 and early November 2014. He said that he did not know that these persons were recruited in to the dwelling because he had returned to India due to his mother’s illness and because he himself needed treatment for a back problem. He said that because he did not know of the new persons residing in the dwelling he had not informed the Respondent Landlord’s Agent of the identities of these new residents.
The Appellant Tenant agreed that he had received a phone call from the Respondent Landlord’s Agent when he was in India. He gave evidence that the Respondent Landlord’s Agent had subsequently issued a Notice of Termination on 4th December 2014 purporting to terminate his tenancy in 1st January 2015.
The Appellant Tenant argued that the Notice of Termination which had been served upon him was invalid because he did not know that the extra persons were in the dwelling and the Agents on behalf of the Respondent Landlord had taken the decision to issue the said Notice of Termination unilaterally at a time when they knew that he was in India having treatment and that he had intended to return in January 2015 when the matter could be discussed. He said that he came back to Ireland on 27th December 2014 and returned to the Dwelling. He said that he had tried to phone and e-mail the Respondent Landlord’s Agents but that contact could not be made because their office was closed until 5th January 2015.
The Appellant Tenant said that it was his information that the Agents on behalf of the Respondent Landlord had signed a new tenancy agreement with four of the then residents in the dwelling on 12th December 2014 and that therefore this constituted a breach of his fixed term lease on the part of the Respondent Landlord and that as such he should be reimbursed for the rent paid on 26th November 2014 and that his deposit of €1,150 should also be returned in full. He alleged that the Agents on behalf of the Respondent Landlord had double charged in respect of the period from the date the new tenancy agreement was commenced to the 24th December 2014 for which he had also paid and suggested that they may have retained some of the said monies their own account. He said that this should be considered in the context of any rent that is being sought in respect of his continued occupancy after 23rd December 2014.
The Appellant Tenant agreed that he had not returned the key of the dwelling to the Agent on behalf of the Respondent Landlord because he said that he wished to get his deposit back. He said that however the Respondent Landlord’s Agent had subsequently changed the locks. He disagreed with the proposition of the Respondent Landlord’s Agent that he should be liable for the cost of changing the locks.
The Appellant Tenant said that the only persons that he collected monies from in order to pay the monthly rent to the Respondent Landlord were his original two co-tenants and that subsequent to their departure in mid October 2014 he had collected rent at the end of October 2014 from the two replacement tenants being Nacho Sanchez who paid €300 and Achman Srivastava who paid €400. In response to the Tribunal he denied that he collected rent from any of the 10 persons whose names were submitted to the Tribunal as being persons who had resided in the dwelling during his period in the tenancy. He said that these persons had stayed as short term guests without requirement to pay. When it was put to him that this was at variance with the content of the emails that were submitted by the Agents on behalf of the Respondent Landlord he said that he does not know why these people have banded against him but expressed the view that they may consider that they may have been written to demonise him and to assist the new tenants to secure the tenancy of the dwelling.
The Appellant Tenant gave evidence that he had resided at the dwelling after the 1st January and had vacated on 1st February 2015.

Evidence of the Agents on behalf of the Respondent Landlord
The Agents on behalf of the Respondent Landlord said that the letting was in respect of a three bed-roomed dwelling and that the tenancy agreement included the names of three persons. They submitted that this reflected the expected level of occupancy of the dwelling. They gave evidence that on 2nd December 2014 they discovered that there were persons unknown residing in the dwelling. The second named Agent on behalf of the Respondent Landlord said that a then unknown person later identified as Amit Kumar had called to the dwelling of the Respondent Landlord and sought to raise issues relating to the dwelling, including in particular a fault in the central heating. She said that at the behest of the Respondent Landlord she and the first named Agent on behalf of the Respondent landlord went to the dwelling. Both Agents gave evidence of their findings in relation to the occupancy of the dwelling when they carried out an inspection on 2nd December 2014.
The Agents gave evidence that there were beds and mattresses in every room and that there was a total of 12 beds overall comprised of 8 single beds and 4 double beds. The second named Agent on behalf of the Respondent Landlord said that she found four unknown adults in residence at the dwelling and that she was informed by them that two further persons resided there but were absent at the particular time.
The Agents submitted photographic evidence of the condition in which they had found the dwelling on that day. They highlighted the number of beds shown in the photographs and areas on mould growth. They submitted in evidence that a painter had provided a quotation in the sum of €460 to treat the affected areas and to carry out painting.
They said that it had been reported to them that each of the occupants had been paying €300 per month in rent to the Appellant Tenant and that from their inquiries and further research they were advised that at least 10 different persons had resided in the dwelling since the commencement of the tenancy. Email communications with various persons were submitted in evidence to support these assertions. They said that they had been informed that the Appellant Tenant had also collected deposits of €300 from the occupants. The Agents said that the number of persons residing in the dwelling amounted to excessive occupation giving rise to overcrowding, condensation in the rooms and overuse of the one combined bathroom and toilet in the dwelling.
The second named Agent on behalf of the Respondent Landlord gave evidence of a phone call to the Appellant Tenant on 2nd December 2012 which confirmed that he was in India. She gave evidence that on 4th December 2014 she despatched an email to the Appellant Tenant outlining the breaches of obligation on his part and accompanied with a copy of a Notice of Termination of his tenancy that was also addressed to him at the dwelling at 150 Cooley Road, Drimnagh, Dublin 12.
The Agents on behalf of the Respondent Landlord confirmed that they had not received any rent from the persons residing in the dwelling for the period from 24th November 2014 to 1st January 2015 inclusive other than the payment received through the Appellant Tenant on 26th November 2013 to cover the period to 24th December 2013.
6. Matters Agreed Between the Parties
1) That the tenancy commenced on 24th June 2014 on foot of a written tenancy agreement.
2) That the rent in respect of the tenancy was €1,150 per month.
3) That the Appellant Tenant had paid the full €1,150 security to the Respondent Landlord’s Agent
4) That the Respondent Landlord still retains the Appellant Tenant’s security deposit of €1,150.
7. Findings and Reasons:
Having considered all of the evidence as adduced by the parties at the Tribunal Hearing including all of the documentary evidence the Tribunal makes the following findings based upon the balance of probabilities.
Finding One:
The Notice of Termination that was served on 4th December 2014 by the Agent on behalf of the Respondent Landlord upon the Appellant Tenant, in respect of the tenancy of the dwelling at 150 Cooley Road, Drimnagh, Dublin 12, is valid.
Reason(s): The Tribunal notes that at the time of service of the Notice of Termination on 4th December 2014 the tenancy had not attained the status of a Part IV tenancy but notes also that the tenancy was subject to a 12 month fixed term tenancy agreement that commenced on 24th June 2014. The Tribunal is satisfied on the basis of the evidence adduced at the Tribunal hearing and in the documentation as submitted to the Tribunal by the parties that the Appellant Tenant had at the material time failed to comply with the one or more of his obligations in the tenancy agreement.
The Tribunal accepts the evidence of the Agents on behalf of the Respondent Landlord that the Appellant Tenant had sub-let the tenancy and had taken in paying occupants without informing and without the consent of the Respondent Landlord. The Tribunal finds that this constituted a breach of his obligations s.16(k) of the Act. The Tribunal has reviewed the format and content of the said Notice of Termination and is satisfied that it complies with the relevant provisions the Residential Tenancies Act.
Finding Two:
The Tribunal finds that the Appellant is in rent arrears in the sum of €340.29 in respect of the period from 24th December 2014 to 1st January 2015 inclusive.
Reason(s): The Tribunal notes and accepts the evidence of the Agents on behalf of the Respondent Landlord that the new tenancy agreement was finalised during January 2015 and was backdated to 1st January 2015. The Appellant Tenant had paid rent to cover the period up to midnight on 23rd December 2014 and rent fell due again on 24th December 2014. Therefore the Tribunal finds that the Appellant Tenant retained occupancy of the dwelling until 1st January 2015 when the Notice of Termination expired is therefore liable for the rent commencing on 24th December 2014 to 1st January 2015 being rent for 9 days and on the basis of the joint and several liability in respect of the obligations of the tenants as at clause 1.3 and clause 1.6 of the written tenancy agreement.
The Tribunal has calculated that the amount due in this respect is €340.29
The Tribunal has set out below the manner in which the quantum of rent arrears has been assessed:
The Monthly Rental amount is €1,150
The Daily amount of rent has been calculated by multiplying the Monthly rent of €1,150 by 12 to yield an annual rate of rent = €1,150 X 12 = €13,800
This sum has then been divided by 365 to yield the daily rate = €13,800 ÷ 365 = €37.81
For 9 days this Daily rate is multiplied by 9 = €37.81 X 9 = €340.29
Therefore the Tribunal has determined that the rent arrears in respect of the 9 days = €340.29
The Tribunal notes that the Appellant Tenant said in the course of his oral testimony that he had remained in the dwelling without paying rent after the expiry of the Notice of Termination and finally vacated on 1st February 2015. The Tribunal considers that he is not liable for rent in this period as there was a new tenancy in place to which he was not a party. The Tribunal is of the view that any occupation on his part in that period was in the context that he was a guest of the new tenants.
Finding Three:
The Tribunal finds that the Appellant Tenant has been in breach of his obligations in the tenancy under the provisions of Clause 3.39 of the written tenancy agreement under s. 16(f) of the Act in failing to return the key to the dwelling to the Respondent Landlord.
Reason(s): The Tribunal notes that the Appellant Tenant has stated in his evidence that he retained the keys to the dwelling on the advice of his solicitor in order to strengthen his position in securing the return of his security deposit. This action constituted a breach of his obligation under the provisions of clause 3.39 of the written tenancy agreement. Clause 3.39 states: ‘That immediately at the expiration or sooner determination of the Tenancy to peacefully and peaceably surrender and yield up unto the Landlord or his Agent possession of the Premises together with any and all of the Landlord’s furniture, fixtures, fittings and effects in good substantial and reasonable and condition in all respects (reasonable wear and tear excepted).’ The Tribunal considers that by retention of the keys he caused a deterioration in the condition the dwelling was in at the commencement of the tenancy. This action on the part of the Appellant Tenant rendered any other set of keys and the locks to the dwelling less effective and thus caused a deterioration in the condition of the dwelling. The Tribunal accepts the evidence of the Agent on behalf of the Respondent Landlord that it was necessary to change the locks on the dwelling as a consequence of the retention of the key and that this was done on 25th February 2015. In the absence of any vouched receipts for the materials and work involved the Tribunal awards the sum of €120 to the Respondent Landlord in damages for the consequences of the Appellant Tenant’s action which necessitated the changing of the locks and which sum is set at the lower range of the cost of such undertakings.
Finding No.4
The Tribunal finds that the Appellant Tenant was in breach of his obligations by sub-letting the tenancy without the written consent of the Respondent Landlord.
Reasons: There was a conflict of evidence in regard to the subletting of the dwelling and the Appellant Tenant submitted that he had a general permit from the second named Agent on behalf of the Respondent Landlord to replace the original two co-tenants and that such was all that he had done. He said that any others who had stayed there were short term guests. He submitted that the e-mails that were adduced in evidence by the Agents on behalf of the Respondent Landlord were written in an attempt to demonise him. The Tribunal accepts the evidence of the Agents on behalf of the Respondent Landlord that the Appellant Tenant sublet the tenancy contrary to the provisions of s.16(k) of the Act and Clause 3.19 of the written lease agreement that was recounted in their interviews with the residents of the dwelling when they discovered the extent of occupation and in their record of subsequent discussions with the Appellant Tenant in January 2015 when attempts were still ongoing to rectify matters.
Finding No.5
The Tribunal finds that the Appellant Tenant’s claim in respect of the return of rental monies paid on 24th November 2014 is not upheld.
Reason(s): The Tribunal has considered the claim on the part of the Appellant Tenant that the Agents on behalf of Respondent Landlord had commenced the new tenancy in respect of the dwelling on 12th December 2014 and had collected rent in that period to the 24th December 2014 for which he had also paid rent. The Appellant Tenant said that he was told that this was the case by some of the new tenants whom he did not identify and who were not in attendance at the Tribunal Hearing. The Tribunal considers that the Appellant Tenant has not adduced sufficient evidence to uphold this claim. The Tribunal accepts the direct oral evidence of the second named Agent on behalf of the Respondent Landlord in response to a query from the Tribunal that the new tenancy commenced on 1st January 2015 and that no rent was collected. The Tribunal also notes the content of e-mails submitted in evidence showing that negotiations with the new tenants were still ongoing in early January 2015.
Finding No.6
The Tribunal finds that the claim on the part of the Respondent Landlord in respect of damage in excess of normal wear and tear is not upheld.
Reasons: Whereas the evidence submitted on behalf of the Respondent Landlord included photographic evidence of mould in the dwelling after the discovery of the sub-letting these related to the period of 2nd December and there was no evidence adduced to show that the Appellant Tenant had been offered an opportunity to rectify the alleged damage and there was no evidence adduced that showed the side by side condition of the same areas of the dwelling at the commencement of the tenancy. The Tribunal notes that the Appellant Tenant submitted that the bathroom was in a similar condition to that which it was in at the commencement of the tenancy. The submissions on behalf of the Respondent Landlord made mention of a quotation on the part of a painter in the sum of €460 but no documentary evidence of such was submitted. The Tribunal considers that the Respondent Landlord has not submitted sufficient evidence to uphold a claim for damages arising from the failure of the Appellant Tenant having caused damage in excess of normal wear and tear and accordingly makes no award in respect of same.
8. Determination:
Tribunal Reference TR0315-001079
In the matter of Krishan Deep (Tenant) and Susan Moylett (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Notice of Termination that was served on 4th December 2014 by the Agent of the Respondent Landlord upon the Appellant Tenant, in respect of the tenancy of the dwelling at 150 Cooley Road, Drimnagh, Dublin 12, is valid.
2. The Respondent Landlord shall pay the total sum of €689.71 to the Appellant Tenant within 28 days of the date of this Order being the balance of the Appellant Tenant’s security deposit of €1,150 having deducted the sum of €120 in damages for the Appellant Tenant’s breach of obligation necessitating the replacement of locks at the dwelling and having deducted the sum of €340.29 in respect of rent arrears all in respect of the tenancy of the dwelling at 150 Cooley Road, Drimnagh, Dublin 12.

The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 19/08/2015.
Signed:

John Tiernan Chairperson
For and on behalf of the Tribunal.
Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001647 / Case Ref No: 0116-23300
Appellant Landlord: Peter Flint
Respondent Tenant: Hilary Lemass, Shane Harte
Address of Rented Dwelling: 72 Brighton Square, Rathgar , Dublin 6,
Tribunal: Eoin Byrne (Chairperson)
Peter Shanley, 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 10:30
Attendees: Hazel Smyth (Appellant Landlords’ Representative).
Hilary Lemass (Respondent Tenant)
Shane Harte (Respondent Tenant).
In Attendance: RTB appointed stenographer/logger.
1. Background:
On the 4th January, 2016, the Tenants 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 the 4th February, 2016. The Adjudicator determined
that:-
The Respondent Landlords shall pay the total sum of €814.86 to the Applicant
Tenants, within 14 days of the date of issue of the Order, being the balance of the
unjustifiably retained security deposit of €2,250.00 having deducted €1,435.14 for
rent arrears, in respect of the tenancy of the dwelling at 72 Brighton Square, Rathgar,
Dublin 6.
Subsequently a valid appeal was received from the Landlords by the RTB on the 1st
March, 2016. The Board, at its meeting on the 10th March, 2016, approved the referral to
a Tenancy Tribunal of the appeal. The grounds of the appeal were Breach of Tenant
obligations, Damage in excess of normal wear and tear and Rent arrears. The RTB
constituted a Tenancy Tribunal and appointed Eoin Byrne, Ciara Doyle and Peter
Shanley as Tribunal members, pursuant to Section 102 and 103 of the Act and appointed
Eoin Byrne to be the chairperson of the Tribunal (“the Chairperson”).
On the 22nd 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 the 19th May,
2016, the Tribunal convened a hearing at 10:30am 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:
A letter of the 17th August, 2015, from the Appellant Landlords to the Respondent
Tenants was submitted by the Respondent Tenants. The Appellant Landlords’
representative submitted a letter and quotation from Virtus Facilities Management, an
invoice in respect of cleaning and an email of the 4th February, 2016, from Sherry
Fitzgerald to the Appellant Landlords.
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 party who appealed (the Appellant Landlords, represented at hearing) would be
invited to present their case first; that there would be an opportunity for cross-examination
by the Respondent Tenants; that the Respondent Tenants would then be invited to
present their case, and that there would be an opportunity for cross-examination by the
Appellant Landlords’ representative. 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 €4,000 or up to 6 months’ imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only.
5. Submissions of the Parties:
Appellant Landlords’ Case:
The Appellant Landlords were represented at hearing by Hazel Smyth. She confirmed
that there were two landlords, despite the fact the application was taken in Mr. Flint’s
name.
In respect of the matters in dispute, namely the issues surrounding the termination of the
tenancy and the condition of the dwelling at the termination of the tenancy, she indicated
that they arose as a result of the desire of the Appellant Landlords to sell the dwelling.
She stated that while the Respondent Tenants were offered an opportunity to buy the
dwelling, it became clear they would not be in a position to do so. She relied on the
documentation submitted which showed that the relationship between the parties was
good prior to the termination of the tenancy. She also stated that she did not believe three
viewings being carried out over the course of the tenancy was unreasonable and felt that
efforts were made to accommodate the Respondent Tenants.
In respect of the termination of the tenancy, she indicated that August to October and
November was generally a prime time of year to sell dwellings and that the market eased
off after that, hence the desire of the Appellant Landlords to have viewings during that
time. The Appellant Landlords therefore served a Notice of Termination on the
Respondent Tenants on the 17th August 2015 giving them 150 days’ notice, rather than
the statutory minimum requirement of 112 days’ notice. She submitted that subsequently
the Respondent Tenants gave notice on the 20th August 2015, giving 56 days’ notice of
termination of their tenancy, and that, in accordance with the Act, the relevant date of
termination was thus the 14th October 2015. On the 4th September 2015, the
Respondent Tenants emailed the Appellant Landlords informing them that they would
vacate the property on the 18th September 2015. The Appellant Landlord’s agent denied
that there was any agreement to terminate the tenancy evidenced in the emails between
the parties and that, effectively, the Respondent Tenants only gave two weeks’ notice on
the 4th September that they would be leaving the dwelling on the 18th September. While
it was accepted that the communication stated that the Respondent Tenants could leave
any time up to the termination date, she submitted that this in no way meant that rent was
only owed up to the date they vacated, and was simply an acknowledgment that the
Appellant Landlords could not force the Respondent Tenants to remain in the dwelling. As
such, she reiterated that there was no evidence in the emails to suggest that the
Appellant Landlords had consented to early termination of the tenancy.
In respect of the retention of the deposit, she relied upon the documentation and
photographs submitted, in particular the list of items outlined in the case file as being
damage beyond normal wear and tear. However, she also indicated that she had not
personally visited the dwelling. She asserted that the lease also contained an obligation
to carry out a full clean of the dwelling at the termination of the tenancy and that,
accordingly, the Respondent Tenants were liable for the cost of that cleaning. She also
contended that the allegedly missing hedge clippers were in the dwelling at the
commencement of the tenancy. She stated that the list contained in the case file was the
full amount of expenditure incurred at the end of the tenancy, to the best of her
knowledge. However, she also clarified that the carpet runner was not replaced but was
instead cleaned at a cost of €250, rather than the €1,250 claimed in respect of it. She
stated that while the Appellant Landlords may have commended the Respondent Tenants
on the condition in which they had kept the dwelling, there was a difference between an
inspection with tenants in situ and a “deep dive” inspection on vacation of the dwelling,
when the damage suffered became apparent.
The Appellant Landlords’ representative also contended that the Respondent Tenants
were otherwise in breach of their obligations, having regard to the evidence submitted
relating to business being carried on at the address and the installation of a water meter
by the Respondent Tenants. She further indicated that, at certain other stages during the
tenancy, rent was paid late, and she relied upon the bank statements submitted in this
respect.
Accordingly, having regard to the alleged rent arrears and alleged breaches of obligation
by the Respondent Tenants, the Appellant Landlords contended that not only were they
entitled to retain the deposit but that they were entitled to additional payment from the
Respondent Tenants, in respect of the lost rent and the damage to the dwelling beyond
normal wear and tear. The Appellant Landlords thus sought an order for rent arrears of
€2,425 for September, 2015, plus €1,116.22 for the 14 days in October, 2015, up to the
date of termination of the tenancy, plus €2,225 in respect of damage to the dwelling
beyond normal wear and tear, offsetting the deposit of €2,250, to give a total figure of
€3,516.22.
Respondent Tenants’ Case:
The Respondent Tenants both appeared at hearing. They contended that the only rent
they should be liable for is the rent due up until the date of vacation of the dwelling,
namely the 18th September, 2015, and that they were entitled to the refund of the
balance of their deposit. They rejected any allegation of damage to the dwelling beyond
normal wear and tear.
The Appellant Landlords sent an email to the Respondent Tenants on the 2nd September
2015 proposing a resolution of the dispute and suggesting two options open to the
Respondent Tenants. In respect of the rent arrears issue, the Respondent Tenants
expressly accepted at hearing that they were not contending that “Option 2” of the email
of the 2nd September formed the basis for any agreement. They indicated that they were
surprised at the expectation of the Appellant Landlords that they would facilitate two to
three viewings per week, in particular where their personal belongings remained in the
dwelling. They accepted that there were obligations in the tenancy agreement in respect
of access but contended that allowing the number of viewings requested would affect
their right to peaceful and exclusive enjoyment of the dwelling. They also asserted that
while they did not know if the Appellant Landlords did have a genuine intention to sell the
dwelling, they accepted that the dwelling was on the market, that there were viewings,
and that all they sought was the return of the balance of their deposit. They indicated that
they had tried to come to some sort of an agreement in respect of access to the dwelling
but that when that was not possible, they decided it was not worth the hassle and that the
expectations placed on them were too great. They stated that, as such, where their
peaceful enjoyment of the dwelling would have been interfered with, they had no
obligation to pay rent. However, they also accepted that the documentation submitted
was the key thing for the Tribunal to consider in respect of the termination of the tenancy.
They asked why they should stay and pay rent when they were not going to receive
peaceful enjoyment of the dwelling. They indicated that the keys to the dwelling were
returned on the 18th September, that the Appellant Landlords had full access from that
point onwards and that the dwelling was on the market inside a week. They contended
that the Appellant Landlords could not claim an entitlement to rent and an entitlement to
full access to the dwelling and that, accordingly, they were left with no alternative but to
vacate the dwelling. However, they also accepted that no viewings were scheduled or
requested in the period between the 4th September and the 18th September when they
vacated the dwelling.
In respect of the condition of the dwelling at the termination of the tenancy, the
Respondent Tenants referred to the email submitted wherein the Appellant Landlords
thanked the Respondent Tenants for the way they had respected the dwelling over the
course of the tenancy, from August, 2015. They also relied upon the photographs
submitted by them, showing the condition of the dwelling at their vacation of it. They
relied upon the statement submitted, replying to the issues raised by the Appellant
Landlords. They indicated that there was little correlation between the amounts claimed
by the Appellant Landlords and the figures outlined on the invoices and quotations
provided, such that they could not rely on them. Further, they stated that the issues
complained of were wear and tear related, where they had lived in the dwelling for almost
six years. They also asserted that there were never any hedge clippers in the dwelling,
that that had been clarified on the renewal of the lease previously, and that no issue had
been raised in respect of them.
In respect of the issue raised by the Appellant Landlords that they had occasionally been
late with rent payments, they indicated that this generally occurred once a year, as the
standing order for rent payment was set up on an annual basis, given that rents could
change. As such, they asserted that any issues were administrative more than anything
else, and that all such rent was ultimately paid.
Accordingly, the Respondent Tenants submitted that the only sum due was the rent from
the 1st to the 18th September, 2015, and that that was the only sum which the Appellant
Landlords were entitled to deduct from the deposit, such that the remainder should be
returned to them.
6. Matters Agreed Between the Parties
The parties agreed that a deposit in the amount of €2,250 had been paid at the
commencement of the tenancy in 2009. They also agreed that the monthly rent was
€2,425 at the termination of the tenancy and that rent had been paid up to the 31st
August, 2015. Further, they agreed that the Respondent Tenants vacated the dwelling on
the 18th September, 2015, albeit it remained in dispute whether rent was due until this
date, or until the 14th October, 2015.
The Respondent Tenants also agreed that the basis of their claim was deposit retention
and accepted that, prior to the termination, the Appellant Landlords did have a genuine
intention to sell 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 1: The Tribunal finds that Respondent Tenants had an obligation to pay rent until
the expiration of their notice on the 14th October, 2015, and that the Appellant Landlords
were thus entitled to retain the deposit. As such, the Tribunal finds that the Respondent
Tenants shall pay the sum of €1,291.22 to the Appellant Landlords, being €3,541.22 due
and owing in respect of rent, having offset the retained deposit of €2,250.
Reasons: The Tribunal is satisfied that the termination date of the tenancy was the 14th
October, 2015, notwithstanding the fact the Respondent Tenants vacated the dwelling
prior to this date, on the 18th September, 2015. It is uncontroverted that the rent was due
on the 1st of each month and that the last rent paid was that to cover August, 2015. In
respect of the termination of the tenancy, it is quite clear that the reason for the
termination was the Appellant Landlords’ stated intention to sell the dwelling. However, it
is also clear that the Respondent Tenants ultimately decided to terminate the tenancy
themselves, by serving a notice of termination in August 2015, and it is not controverted
that the termination date specified therein was the 14th October, 2015. The only possible
way an earlier termination date could have been specified, on the evidence of this case,
is if there were an agreement entered into between the parties under section 69 of the
Act, either on or after the Respondent Tenants gave their notice. However, while a large
number of emails have been submitted by the parties, none of these demonstrates
evidence of a concluded agreement. While the Respondent Tenants submitted that they
should not have an obligation to pay rent after their vacation of the dwelling, there is no
objective evidence of a concluded agreement, such as would satisfy the Tribunal on the
balance of probabilities that such an agreement existed.
Going through the emails of the parties in turn, the email of the 2nd September, 2015,
from the Appellant Landlords to the Respondent Tenants clearly outlines two numbered
options. The first option specifies payment of rent up until the termination date of the 14th
October; the second outlines an alternative proposal. It does not appear to the Tribunal
that the reply from the Respondent Tenants constituted an acceptance of the second
proposal; indeed, the reply did not refer to either of the two options offered, much less did
it purport to accept either of the options. As such, there was clearly no agreement under
section 69 at that stage that the tenancy would terminate by agreement on the 18th
September. It is clear then from the email of the 5th September, 2015, from the Appellant
Landlords to the Respondent Tenants, that the Appellant Landlords viewed the response
as an election of the first of the two options: that is, that it included payment of rent up
until the 14th October. The email quite specifically states (as a reference to the earlier
email) “you are electing option 1” and “Option 2 has therefore (sic) is no longer an option
and this matter is now concluded”. It clearly also states “Accordingly, please pay the full
rent up to your nominated termination date”. Read in conjunction with the earlier email of
the 2nd September, and the first option outlined therein, it is quite clear that the Appellant
Landlords were rejecting any proposal that did not include the continuation of the tenancy
and the payment of rent until the 14th October. While the email does go on to state that
“You can move out at any stage between now and the termination date”, in no way does
this mean the Appellant Landlords were foregoing any entitlement to rent; all it meant was
that the Respondent Tenants could vacate possession prior to the 14th October, but that
their obligation to pay rent remained, and, per the email of the 2nd September and option
1 outlined therein, the Respondent Tenants continued “maintaining [their] tenancy rights
until 14 October”.
As such, neither of those emails provides evidence of a concluded agreement to
terminate the tenancy prior to the 14th October, 2015, nor do the further emails of the 7th
September demonstrate any such agreement. In fact, the opposite is true. The first email
of that date contains a demand for the full month’s rent, hardly in keeping with any
concluded agreement to terminate the tenancy on the 18th September. The Respondent
Tenants’ reply to that email, including a promise that “I will get this resolved soonest
(sic)”, does not demonstrate evidence of a concluded agreement either. Indeed, given
that the email states “What we suggested was …” before clarifying an earlier proposal,
the Tribunal is satisfied that the Respondent Tenants accepted, even at that stage, on the
7th September, that what had happened before was only a process of negotiation, which
remained uncompleted, rather than a finalised agreement to terminate the tenancy. Had
there been a concluded agreement at that stage, the Tribunal would not expect to find
phraseology such as “What we suggested was …” in an email from the Respondent
Tenants to the Appellant Landlords. It is clear then from the following email of the 7th
September that the Appellant Landlords continued to expect payment of rent up until the
14th October, in particular given that the email states “The amount you owe is 2,425 for
the month of September and 1,116 up to the end of October. Your termination date is 14
October”. It is hard to see how this email could have been less equivocal or how it could
possibly be read as evidence of any agreement under section 69 of the Act. While it does
go on to state again that the Respondent Tenants can “move out any time up until 14
October”, there is clearly no undertaking in the email that doing so would result in the
obligation to pay rent ceasing. The Tribunal is satisfied, on the balance of probabilities,
from the evidence surrounding the whole course of dealing between the parties and the
clear wording of the emails, that there was never a concluded agreement that the tenancy
would terminate on the 18th September, 2015.
While the Respondent Tenants did in fact vacate the dwelling on the 18th September,
there is no objective evidence from which it can be inferred that this was done on foot of
any concluded agreement between the parties under section 69 of the Act or otherwise.
The best evidence before the Tribunal is the correspondence between the parties. While
further telephone contact may have taken place between the parties, the emails are clear
and there is no evidence in the emails to suggest that there was an agreement at any
stage. Accordingly, rent was due until the termination date of the 14th October, 2015.
Given that the monthly rent was €2,425, the Tribunal is satisfied that the total amount
owing is €2,425 for the month of September, plus €1,116.22 for the fourteen days in
October. This amount is calculated by reference to the annual rent of €2,425 * 12 =
€29,100, divided by 365 to give a daily rent of €79.73. Multiplying that figure by fourteen
gives the figure of €1,116.22. Adding that figure to the €2,425 in respect of September
gives a total figure due of €3,541.22, and deducting the amount of the deposit of €2,250,
gives a net figure due and owing of €1,291.22. Under section 12(4) of the Act, the
Appellant Landlords were entitled to retain the deposit at the date of termination of the
tenancy, as there were rent arrears owing in excess of the amount of the deposit.
While the Appellant Landlords had an obligation to mitigate their potential losses in this
respect, the Tribunal is satisfied on the balance of probabilities that they were not in
breach of this obligation. The Tribunal is satisfied that the dwelling was marketed for sale,
as intended, once the dwelling was in marketable condition. While it was not ultimately
sold, and was in fact re-advertised at a higher rent, in November, 2015 (after the
expiration of the Respondent Tenants’ obligation to pay rent), the Tribunal is satisfied that
the actions of the Appellant Landlords were reasonable in the circumstances. Certainly,
there is no evidence before the Tribunal from which it could be inferred that the Appellant
Landlords were in breach of their obligation to mitigate potential losses and the Tribunal is
satisfied that they were at a loss of rent until at least the 14th October, 2015 as a result of
the Respondent Tenants’ breach of obligation to pay rent under section 16(a) of the Act.
Finding 2: The Tribunal finds that the Appellant Landlords have not proved that the
Respondent Tenants caused any damage to the dwelling beyond normal wear and tear
and, as such, that they have not proved any entitlement to damages or retention of any
amount of the deposit in this respect, being entitled to retain the deposit solely in respect
of the rent arrears issue.
Reasons: The Tribunal is satisfied that the Appellant Landlords have not proved any
entitlement to damages in respect of damage to the dwelling beyond normal wear and
tear. As a preliminary point, the Tribunal notes that under section 16(f), assessment of
what is and is not normal wear and tear must have regard to both the time that has
elapsed since the commencement of the tenancy and the extent of occupation of the
dwelling the Appellant Landlords must have reasonably foreseen would occur since the
commencement. In the circumstances of this case, where the tenancy lasted almost six
years, and where the Respondent Tenants were a young family with growing children, a
significant amount of normal wear and tear ought to have been reasonably foreseen.
Indeed, it is informative to note that Revenue guidelines generally allow straight line
depreciation over an eight-year period in respect of writing off the cost of certain fixtures
and fittings of rental properties. As such, over the course of almost six years, a
substantial amount of wear and tear must be allowed in respect of rental dwellings, in
particular where it is fair to assume that a dwelling with children also living in it will be
subject to a substantial amount of wear and tear.
The Tribunal also notes that the evidence given at hearing was that, to the best of the
knowledge of the Appellant Landlords’ representative, the sum claimed was in fact the
total expenditure incurred by the Appellant Landlords. After a six-year tenancy, it is
entirely reasonable that some expenditure will be necessary, allowing for repair of issues
caused by normal wear and tear, and that it is not reasonable to claim against a tenant in
respect of the full amount of expenditure incurred. Also, the Tribunal notes that the email
relied upon from the Appellant Landlords’ agent in respect of the condition of the dwelling
uses terms such as “recommended viewing standards” and states that “a professional
clean and tidy of internal and external grounds was necessary prior to any public
viewing”. While it does refer to some items being damaged, the relevant standard is
allowing for normal wear and tear; there is no requirement on any tenant to return a
dwelling to recommended viewing standards, or to carry out professional cleaning to a
standard necessary to allow public viewing. Indeed, the term of the lease (paragraph 3.9)
and section 16(f) of the Act specifically allow for normal wear and tear; it is clear to the
Tribunal that the standard referred to by the agent is a higher one, and not one to which
the Respondent Tenants were bound to return the property in at their vacation of the
dwelling.
In respect of the specific items claimed, as noted above, the professional clean of the
dwelling appears to have been necessary as a result of the requirement to bring the
dwelling up to a viewing standard. The only objective evidence in respect of the condition
of the dwelling at the termination of the tenancy is that contained in the photographs
submitted by the Respondent Tenants. These clearly show the dwelling in a reasonably
good condition at the termination of the tenancy and certainly do not show a dwelling in
need of a thorough professional cleaning to bring it up to a standard allowing for normal
wear and tear, in particular having regard to the duration of the tenancy. In particular, the
photos show a number of items in detail, including the inside of an oven, which appears
to have been cleaned to a high standard. There is no evidence in those photographs, nor
those submitted by the Appellant Landlords, such as would justify the award of any
amount in respect of the professional cleaning of the dwelling or the garden.
The Tribunal is also satisfied that a requirement to carry out minor repair works is also to
be expected as normal wear over such a tenancy, in particular with regard to claims such
as those for wall lights, kitchen units, minor ceiling and plaster repairs, curtains and
blinds, and in respect of repainting. Further, given that young children were living in the
dwelling, issues such as minor carpet stains are to be expected. The Appellant Landlords’
representative at hearing accepted that the stair runner was not replaced, as initially
claimed, but that it was instead cleaned at a cost of €250, as opposed to the €1,250
replacement cost, thus giving a gross figure of €2,225 as opposed to €3,225 in respect of
damages claimed. Such damage is to be reasonably expected over the course of a
tenancy of almost six years. In respect of the missing hedge trimmers, firstly, there is a
clear conflict on the evidence as to whether these were even in place at the
commencement of the tenancy. The first lease submitted, commencing the 1st
December, 2009, does not refer to them at all, and the later extract from 2011 shows
them having been crossed out. As such, it is not clear that they were even in the dwelling
at the commencement of the tenancy, and there is no evidence from which the Tribunal
can be satisfied on the balance of probabilities they were present, in particular where the
only evidence they were there is hearsay, and the direct evidence of the Respondent
Tenants at hearing was that they were not present. Secondly, in any event, the loss of
certain items is to be expected over a tenancy, or at the very least, a cessation in function
of those items. Were the hedge trimmers present but broken and in need of replacement,
it would equally appear to be the case that that would constitute normal wear and tear, in
particular where the evidence before the Tribunal is that the garden in the dwelling was
generally kept in good condition by the Respondent Tenants during the course of the
tenancy. Further, there is no evidence that the Appellant Landlords suffered any loss
whatsoever as a result of the alleged breach of obligations in respect of the installation of
a water meter at the dwelling and the Tribunal is satisfied no amount of damages should
be awarded in this respect.
The Tribunal notes that the total amount of rent due over the course of the tenancy, at a
minimum of €2,250 per month, for five years and ten and a half months, comes to almost
€160,000, and indeed was likely greater than this. As such, expenditure of €2,225 at the
end of the tenancy to bring a dwelling back to marketable condition, a condition above
that allowing for normal wear and tear, does not appear to be in excess of what the
Tribunal would expect to be reasonably incurred in refurbishing a dwelling after a tenancy
of that duration, allowing for the fact some refurbishment and replacement is to be
expected arising from normal wear and tear. Accordingly, having regard to the nature of
the evidence submitted, the duration of the tenancy, and the fact a young family resided
in the dwelling over that period, the Tribunal is satisfied on the balance of probabilities
that the Appellant Landlords have not proved that the Respondent Tenants were in any
way in breach of their obligations under section 16(f) of the Act, or in breach of their
obligations under the tenancy agreement, in respect of the condition of the dwelling at the
termination of the tenancy. As such, the tribunal is satisfied that the Appellant Landlords
are not entitled to damages in this respect, nor were they entitled to retain any portion of
the deposit in respect of same.
Finding 3: The Tribunal finds that the Appellant Landlords have not proved that they
suffered any loss as a result of the Respondent Tenants refusing access to the dwelling,
or that the Respondent Tenants were in breach of their obligations in this respect in any
more than a most minor way.
Reasons: As noted above, the Tribunal is satisfied that the termination date of the
tenancy was the 14th October. Also, it is clear from the lease submitted that the obligation
to allow access to the Appellant Landlords for the purposes of viewings only arose during
the last month of the tenancy. It is not possible for the Appellant Landlords to claim
simultaneously that the Respondent Tenants were in breach of their obligations in this
respect, but also claim that the obligation to pay rent, and thus the tenancy, continued to
exist until the 14th October, 2015, where it is uncontroverted that the dwelling was
vacated on the 18th September, 2015. Paragraph 3.31 of the tenancy agreement
between the parties clearly outlines that the right of the Appellant Landlords or any
authorised person to enter and view the property with prospective tenants or purchasers
applies “within the last 1 month of the tenancy”. There as thus no obligation on the
Respondent Tenants to allow viewing to such persons until the 14th September, 2015,
despite the email correspondence which occurred prior to this date, and despite the
desire of the Appellant Landlords to have the dwelling ready for viewing as of the 1st
September, 2015. Indeed, without the Respondent Tenants themselves giving notice, the
obligation to allow viewings would not have arisen for a further number of months, had it
been as a result of the original notice given by the Appellant Landlords.
As such, it is clear to the Tribunal that the actions of the Respondent Tenants in vacating
the dwelling 26 days prior to the expiration of the notice of termination, and returning the
keys, meant that the Appellant Landlords had unhindered access to the dwelling for the
vast majority of that one-month period. Indeed, it is clear that the Respondent Tenants
also facilitated access for inspection in advance of this period, prior to vacating the
dwelling. As such, there is no basis under which any finding could be made by the
Tribunal that the Respondent Tenants were in breach of their obligations in this respect.
There is no right, under the Act, for a landlord to access a dwelling for the purposes of
showing it to prospective purchasers or tenants, and any such obligation can only be an
additional obligation imposed by agreement, as occurred in the present case. While there
is a right to access the dwelling for the purposes of periodic inspection and repair, given
that the Respondent Tenants did allow three separate visits in the period leading up to
the termination of the tenancy, the Tribunal is satisfied on the balance of probabilities that
the Respondent Tenants were not in breach of their obligations under section 16(c) of the
Act, and is not satisfied that the Appellant Landlords suffered any loss as a result of the
alleged breach of obligation. The Appellant Landlords did not suffer “four weeks lost” as
asserted in the email submitted at hearing; at best, it can be contended that they suffered
a lost four days. To assert that this constituted a breach of obligations, other than a most
minor breach, in particular where it was clear the Respondent Tenants were going to
vacate the dwelling when they did, appears to the Tribunal to be quite unreasonable and
utterly irreconcilable with the assertion that rent was owed until the 14th October, 2015.
The Tribunal is also satisfied, however, that, had the Respondent Tenants remained in
occupation of the dwelling, they would have been obliged to comply with their obligations
under paragraph 3.31 of the lease and allow access to the dwelling to prospective
purchasers or tenants between the 14th September and the 14th October. However, such
access would have to have been in accordance with and giving due weight to section
12(1)(a) of the Act, and the right to peaceful and exclusive occupation, and any such
obligation would have to be construed in accordance with that section. However, given
that the Respondent Tenants vacated with almost a full month remaining of the tenancy,
and given that no such viewings occurred (nor does there appear to have been any
request for a viewing to occur during those four days), the exact interpretation of that
obligation, and its interaction with section 12(1)(a) and section 18(3) of the Act does not
fall to be considered by the Tribunal.
Further, the Tribunal notes that while there is a restriction contained in the tenancy
agreement on not carrying out any profession or business from the dwelling, there is no
evidence whatsoever that the Appellant Landlords suffered any loss as a result of any
alleged contravention of this obligation by the Respondent Tenants, nor is there any
evidence of loss suffered as a result of late payment of rent such as would justify any
award of damages, in particular given the historic nature of the issues and the fact the
Appellant Landlords appear to have been content not to pursue the matter until the
deterioration in the relationship of the parties that has occurred since August, 2015.
Finding 4: The Tribunal finds that the Respondent Tenants are not entitled to damages in
respect of any alleged breach of obligations by the Appellant Landlords.
Reasons: As noted above, the Respondent Tenants accepted that the extent of their
claim was deposit retention and all they sought was the balance of the deposit,
acknowledging that rent was owed until the 18th September. In circumstances where they
acknowledged that the Appellant Landlords had stated an intention to sell the dwelling at
the time of termination, with the dwelling ultimately going on the market and viewings
being carried out, and where a notice of termination was in fact served by the
Respondent Tenants, the Tribunal is satisfied that there is no basis on which to make an
order that there was an abuse of termination procedure under section 56 of the Act.
Indeed, for that section to apply, under section 56(1)(a) of the Act, a tenant is required to
vacate possession “on foot of a notice of termination served under section 34(a)” of the
Act. While the desire to sell may have been the reason behind the Respondent Tenants
deciding to terminate the tenancy themselves, the actual reason for them leaving was in
fact their own service of a notice of termination and, as such, the Tribunal is satisfied that
they vacated the dwelling under their own notice, not “on foot of a notice” served by the
Appellant Landlords under section 34(a) of the Act. Accordingly, the Tribunal is satisfied
on the balance of probabilities that there is no basis to make any order providing
damages for abuse of the termination procedure, notwithstanding the fact the dwelling
was not in fact sold and now appears to have been re-let at a higher rent, certainly having
been advertised for re-letting.
Further, while there were emails between the parties, wherein the Appellant Landlords
sought access to the dwelling for the purposes of viewings prior to the final month of the
tenancy, and while three viewings did in fact occur, the Tribunal is not satisfied that this
constituted a breach of the obligation to allow peaceful and exclusive occupation of the
dwelling, under section 12(1)(a) of the Act. The Respondent Tenants also had obligations
under section 16(c) of the Act to allow the Appellant Landlords, at reasonable intervals,
access to the dwelling for the purposes of inspection. The access allowed, given its
purpose in inspecting the dwelling and measuring it for sale, would appear to be covered
by this obligation. Further, while it could potentially be argued that the second and third
visit constituted inspection otherwise than “at reasonable intervals”, the nature of the
inspection appears to have been very limited and the Tribunal is not satisfied that the
Respondent Tenants suffered loss in any event, in particular having regard to the fact that
inspections will generally need to be carried out by a landlord prior to marketing any
dwelling for sale. As such, the Tribunal is satisfied that those inspections which did occur
were not those foreseen by paragraph 3.31 of the lease, to allow prospective purchasers
or tenants to view the dwelling, but that they were rather those contemplated by section
16(c) of the Act. As such, the Tribunal is satisfied on the balance of probabilities that the
Appellant Landlords were not in breach of their obligations under section 12(1)(a) of the
Act, that the inspections which occurred were permitted by the Act and that the
Respondent Tenants’ right to peaceful and exclusive occupation was not interfered with in
such a way as would give rise to any entitlement to damages.
The Tribunal is also satisfied that the fact the Appellant Landlords may have proposed
certain viewing arrangements which may not have been in accordance with section
12(1)(a) of the Act did not give the Respondent Tenants the right to terminate the tenancy
early. Indeed, even if it did, the Respondent Tenants would have been obliged to give 28
days’ notice, not the 14 days’ notice given on the 4th September, 2015. As such, any
alleged breach of obligations by the Appellant Landlords in no way meant that the
Respondent Tenants’ obligation to pay rent ceased or that they did not owe rent until the
termination date of the 14th October, 2015. Indeed, it is accepted that there were no
proposals to view the dwelling between the 4th and 18th September and, while certain
access arrangements for viewings were discussed, none occurred and the Tribunal is
satisfied that the obligation to pay rent to the relevant termination date of the 14th
October, 2015, remained and that the Respondent Tenants were not entitled to terminate
the tenancy pre-emptively in the manner they did in such a way as would avoid liability for
that rent.
However, the Tribunal should note that any requirement to facilitate two or more viewings
a week, particularly when that was proposed before the final month of the tenancy, would
appear to constitute a breach of obligations under the Act, in particular section 12(1)(a) of
the Act, especially given that some work would be expected of tenants in those
circumstances to ensure a dwelling was in a fit position to be viewed. Given that this did
not occur in the present case, despite being contemplated, the Tribunal is satisfied the
rights of the Respondent Tenants were not interfered with in such a way as gave rise to
any entitlement to damages.
Again, the Tribunal notes that the Respondent Tenants limited their claim to the amount
of the deposit minus the rent due, but given the obligations on the Tribunal to ensure all
aspects of the dispute are covered, it is necessary to make a finding in respect of the
alleged breaches of obligation, given that these issues were argued during the course of
the Tribunal hearing.
Finding 5: The Tribunal finds that the sum of €1,291.22 outstanding should be paid by the
Respondent Tenants, jointly and severally, to the Appellant Landlords, within 42 days of
the issue of the Determination Order of the Board.
Reasons: As noted above, the net sum owing is €1,291.22. Under paragraph 2.2 of the
tenancy agreement between the parties, the obligations under the agreement are
enforceable “against all the tenants jointly and against each one individually”.
Accordingly, the Tribunal is satisfied that it is appropriate that the Determination Order of
the Board should be made against both Respondent Tenants, both being named in the
proceedings. Having regard to the absence of any evidence in respect of the means of
the parties, other than the amount of the rent and the fact that the Respondent Tenants
generally paid the rent promptly over the tenancy, and having regard to the right of the
Appellant Landlords to a prompt remedy, but also bearing in mind the size of the sum due
and owing, the Tribunal is satisfied that it is appropriate to allow the Respondent Tenants
42 days from the date of issue of the Order of the Board to pay the sum owed. However,
while there are two landlords to the dwelling, and while the title of the proceedings should
be amended to reflect this, given that the appeal was brought in the name of Mr Peter
Flint, the Tribunal is satisfied that the Order of the Board should reflect this and is
satisfied that payment ought to be made to Mr. Flint directly, on behalf of both named
Landlords.
Further, while the original application was brought by the Tenants in this case, and the
adjudicator’s determination appealed by the Landlords, the Tribunal has an obligation to
ensure that the procedures adopted are not unduly formal. Accordingly, given that the
Appellant Landlords clearly claimed throughout the proceedings, both before the
adjudicator and at the Tribunal hearing, to be entitled to payment of rent and damages
from the Respondent Tenants, and in the absence of any argument being made by the
Respondent Tenants in respect of the jurisdiction to award a sum against an original
applicant for dispute resolution, the Tribunal is satisfied that it is appropriate to make an
order directing payment by the Respondent Tenants to the Appellant Landlord Mr. Flint,
given that the issues in question were argued before the Tribunal, and in order to finalise
all issues in dispute between the parties.
8. Determination:
Tribunal Reference TR0316-001647
In the matter of Peter Flint (Landlord) and Hilary Lemass, Shane Harte (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Respondent Tenants shall pay to the Appellant Landlords the sum of €1,291.22,
by way of one single payment to Peter Flint, on behalf of both named Landlords, within
42 days of the date of issue of the Determination Order, being €3,541.22 rent arrears,
having offset the amount of €2,250 in respect of the justifiably retained deposit, in
respect of the former tenancy of the dwelling at 72 Brighton Square, Rathgar, Dublin 6.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
30 May 2016.
Signed:
Eoin Byrne Chairperson
For and on behalf of the Tribunal.

 

 

Flynn v Mateen

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001735 / Case Ref No: 0216-24120
Appellant Landlord: Rod Flynn
Respondent Tenant: Abdul Mateen
Address of Rented Dwelling: 11 Cedar Brook Place, Cedar Brook, Cherry
Orchard , Dublin 10, D10KX09
Tribunal: Gerard Murphy (Chairperson)
Mervyn Hickey, Louise Moloney
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 09 June 2016 at 2:30
Attendees: Rod Flynn (Appellant Landlord)
Patrick Flynn (Appellant Landlords witness)
Martin Byrne (Appellant’s Landlords agent)
Noel Duffy (Appellant’s Landlords agent)
Abdul Mateen (Respondent Tenant)
In Attendance: RTB Stenographer
1. Background:
On 10 February 2016 the Appellant Landlord 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 04 April 2016. The Adjudicator determined that:
The Respondent Tenant shall pay the total sum of €1,533 to the Applicant Landlord
within 56 days of the date of issue of the Order, being the sum of €3,733 in rent
arrears having allowed for the justifiably retained security deposit of €1,100 and
having off set the sum of €1,100 in 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 11 Cedar Brook Place, Cedar
Brook, Cherry Orchard, Dublin 10.
Subsequently the following appeal was received from the Landlord on 26 April 2016. The
grounds of the appeal are Rent arrears, Standard and maintenance of dwelling and
Breach of tenant obligations. The appeal was approved by the Board on 28 April 2016.
The RTB constituted a Tenancy Tribunal and appointed Gerard Nicholas Murphy, Mervyn
Hickey, Louise Moloney as Tribunal members pursuant to Section 102 and 103 of the Act
and appointed Gerard Nicholas Murphy 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 09 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 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 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 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.
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 this
could be appealed to the High Court on a point of law only.
The Chairperson asked the parties if they had any queries about the procedure. There
were none. The parties giving evidence were then sworn.
5. Submissions of the Parties:
Appellant Landlord’s Submission
The Appellant Landlord said his agent carried out an inspection of the Dwelling when the
Respondent Tenant moved out, and found that two of the bedrooms suffered water
ingress and there was extensive mould. He said the Respondent Tenant had not
informed the Appellant Landlord or his father or his agent about the problem and this led
to the problem getting worse.
He said the Respondent Tenant had not paid rent since 25 October 2015 until 9 February
2016. It is agreed the total amount of rent arrears is €3,733.00.
The Appellant Landlord said he himself had been out of the country in Asia, and all
matters in relation to this tenancy were dealt with by his father, Mr Patrick Flynn, and his
agents on his behalf.
The Appellant Landlord’s agent Mr Duffy gave evidence and said the Adjudicator had
found the Appellant Landlord had failed to carry out repairs to the Dwelling during the
tenancy. Mr Duffy said that was not the case and repairs were carried out in May 2015
and he referred to the invoice on page 49 of the casefile, and a new time-clock had been
fitted on the boiler and a shower hose had been replaced in April 2015 and he referred to
the invoice on page 50 of the casefile. In relation to the boiler, he referred to an invoice
dated 13 October 2015 at page 48 of the casefile. He said this was repaired within two or
three days of being notified by the Respondent Tenant.
Mr Duffy said he received a message in December from the Respondent Tenant about
fungal growth in the Dwelling, however, he said that the maintenance man could not get
access to the Dwelling after that to look at the problem. Mr Duffy said he himself was at
the Dwelling regularly collecting post for the Appellant Landlord, and Mr Duffy was not
given access to the Dwelling either. He referred to the photographs submitted of the
mould in the Dwelling (page 33). He said the management company manage other units
in the area and are always around to carry out repairs to properties when needed. He
said an assessment was done of the Dwelling after the Respondent Tenant moved out
and it appears there is a leak due to the construction of the Dwelling itself.
Mr Duffy said when the Dwelling was inspected by him in February he noticed that the
sofa in the living room had been moved out to the balcony. He said the Respondent
Tenant had asked him if the sofa could be removed and stored and Mr Duffy contacted
the Appellant’s father about that. Mr Patrick Flynn confirmed that he contacted the
Appellant Landlord about moving the sofa to storage, but this was not possible as there
was nowhere to store the sofa. Mr Duffy said he informed the Respondent Tenant in
relation to that. Mr Duffy said the sofa had been wrapped in plastic, but was exposed to
the elements on the balcony for some time over the winter, and was damp from the rain
and was damaged. He said a cherry-picker had to be used to remove the sofa from the
balcony.
The Appellant Landlord said the sofa had sentimental value for him, he was not seeking
the full value of the sofa, but he estimated the value to him when he got the sofa new was
€1600.00, but this was less than the retail value of the sofa. He said it was a new sofa
when he obtained it in 2008. It was very well built, with duck-feather cushions. He said it
would cost between €1,500.00 and €2,000.00 to repair the sofa. He said the Dwelling was
previously rented for two years before the Respondent Tenant and his family moved into
the Dwelling. He said he expects to rent the Dwelling again in due course, once repairs
are carried out. He said the sofa has not yet been repaired.
Respondent Tenants’ submissions
The Respondent Tenant said that the original complaint by the Appellant Landlord to the
RTB mentioned only two issues, the water ingress/mould and the issue of rent arrears.
No mention was made of the sofa. However, the Respondent Tenant agreed when it was
put to him by the Tribunal that the issue of the sofa was mentioned in the Adjudicator’s
Report, although the Adjudicator had not made any finding in relation to that matter.
The Respondent Tenant said he sent a message in September to Mr Duffy about the
heating in the Dwelling, and he was told a maintenance man would call, but no one
called. On Friday 9 October 2015 he got a message from Mr Duffy enquiring if there was
mail for the Appellant Landlord to be collected. The Respondent Tenant messaged Mr
Duffy back to say he had told Mr Duffy about the boiler in September and no one had
come to fix the problem. The Respondent Tenant said this was the first breach of
contract. He said he could not remember if he had contacted Mr Duffy before 9 October
2015 to inform him that a maintenance man had not called to fix the boiler. On 10 October
2015 the Respondent Tenant messaged Mr Duffy again to say he had no hot water. He
said there was water coming from the boiler room which had to be mopped up regularly.
He said it was Tuesday 13 October 2015 when Mr Duffy called to the Dwelling to collect
the mail that the problem with the boiler was fixed.
The Respondent Tenant explained that there was still a problem with heating the water
and the timer did not work properly. He said his wife, who was pregnant at the time, could
not go up and down the stairs to turn on the booster switch for hot water. He said they
could not use the shower, and had to boil the kettle to get hot water. He said this was the
second breach of contract.
He said he cancelled his standing order for the rent on 25 October 2015 and he
confirmed that rent had not been paid up to 9 February 2016 and he did not dispute the
figure for rent arrears claimed by the Appellant Landlord of €3,733.00. He explained,
however, he only stopped paying the rent because the repairs were not carried out. He
informed Mr Duffy on 9 December 2015 that he wanted to terminate the tenancy because
of the repairs not being carried out.
The Respondent Tenant said he sent a message to Mr Duffy around December 2015
informing him about the leak in the Dwelling, and he said Mr Duffy confirmed he got that
message. He said he never stopped anyone coming to inspect or repair the Dwelling.
He said his mother passed away around 9 January 2016 and he said Mr Byrne, the
Appellant’s agent, had called to the Dwelling when the Respondent Tenant was not there
and spoke to his wife about the rent arrears. On 19 January 2016 the Respondent
emailed Mr Byrne and asked him not to visit the Dwelling until he returned and
complained that his family had been intimidated and harassed in relation to the rent
arrears. The Respondent Tenant said this was a third breach of contract.
In relation to the sofa, the Respondent Tenant accepted he had moved the sofa from the
living room to the balcony and he covered it in thick plastic. He accepted that he did not
bring the sofa back into the Dwelling before he left in February 2016. He referred to the
messages submitted and said he had messaged the Appellant’s agent in July 2016
asking if he could “discard this sofa if landlord is not interested”. The reply he received
was that the Appellant Landlord had nowhere to put the sofa and the Dwelling was rented
with all the furniture included and that if he wished to put his own sofa into the Dwelling,
he would need to “put the current sofa in storage and when you move out put it back into
the property”. He said the sofa could not be used as it was covered in dog hair, and he
said his wife did not want it in the Dwelling for that reason.
6. Matters Agreed Between the Parties
1. The tenancy commenced around 25 March 2015
2. A deposit of €1,100.00 was paid by the Respondent Tenant, and this has been
retained by the Appellant Landlord.
3. The Respondent Tenant is no longer in possession of the Dwelling and moved out
around 9 February 2016 and has returned the keys to the Appellant Landlord.
4. The amount of rent arrears is €3,733.00 and this has not been paid.
7. Findings and Reasons:
Having considered the documentation before it and having considered the evidence
presented by the parties, the Tribunal’s findings and reasons therefor are set out
hereunder:
Finding 1:
The parties agree that the rent arrears in respect of the tenancy of the Dwelling are
€3,733.00. In accordance with s. 12(4) of the Act, the Appellant is entitled to retain the full
amount of the deposit of €1,100.00. The net amount of rent arrears, therefore, is
€2,633.00
Reason:
The parties were in agreement on the figure for rent arrears up to the termination of the
tenancy on 9 February 2016. Section 12(4) of the Act (as amended) allows a landlord to
retain the full amount of the deposit where there are rent arrears.
Finding 2:
The Tribunal finds that the Respondent Tenant was in breach of his obligation pursuant to
section 16(f) of the Act not to cause deterioration to the condition of the Dwelling beyond
normal wear-and-tear. The Tribunal awards the sum of €250.00 to the Appellant Landlord
in respect of the consequences of this breach.
Reason:
In accordance with Section 16(f) of the Act, the Respondent Tenant was obliged not to do
any act that would cause a deterioration to the condition the Dwelling was in at the
commencement of the tenancy, normal wear and tear excepted. Section 16(g) of the Act
provides that if the foregoing obligation is not complied with that a landlord is entitled to
ask the tenant to take such steps as the landlord may reasonably require for the purpose
of restoring the dwelling or to defray any costs incurred in taking such steps. Under
section 12(4) of the Act a landlord may also retain some or all of the deposit to cover the
costs of repairs to the Dwelling.
There can be no explanation which would justify a tenant moving a sofa from the living
room to a balcony where it could be exposed to the elements. The Tribunal is satisfied
the sofa was moved to the balcony by the Respondent Tenant without the consent of the
Appellant Landlord, and although the Tribunal accepts the evidence of the Respondent
Tenant that he covered the sofa with plastic, the Tribunal is satisfied that damage was
caused to the sofa. The Respondent Tenant must accept responsibility for this. The
Tribunal is satisfied the Respondent Tenant was in breach of section 16(f) of the Act as a
result.
In assessing the amount of damages for this breach, the Tribunal must take into account
the duration of the tenancy in this case and the fact that the sofa was left out on the
balcony for several weeks over the winter. What is also relevant is the fact that the sofa
was already about eight years old when the Respondent Tenant moved into the Dwelling
and it was not a brand new sofa. The Appellant has submitted very little by way of
evidence that would assist the Tribunal in estimating the cost of repairs to the sofa, such
as a quotation for repairs. The Tribunal accepts the evidence of the Appellant Landlord
that the sofa can be repaired and it is his intention to repair it in due course. On balance,
the Tribunal will award €250.00 in respect of the damage to the sofa as a fair amount to
allow in the circumstances.
In relation to the leak, the Tribunal is satisfied the Respondent Tenant reported the leak to
the Appellant’s agent by message in December 2015. The Tribunal is satisfied that the
Respondent Tenant is not responsible for any damage caused by this leak, as the
Appellant Landlord acknowledged at the hearing there was a problem with the
construction of the Dwelling which caused the leak and, furthermore, the Tribunal is
satisfied that the Respondent Tenant had notified the Appellant’s agent of the leak in
December 2015 in accordance with section 16(d) of the Act. No evidence was offered by
the Appellant Landlord either in respect of the cost of repairs to the Dwelling for damage
caused by the leak.
Finding 3:
The Tribunal finds that the Appellant Landlord was not in breach of section 12(1)(a) of the
Act i.e. to allow the Respondent Tenant enjoy peaceful and exclusive occupation of the
Dwelling,
Reason:
The only complaint made by the Respondent Tenant on this ground was the visit by the
Appellant’s agent, Mr Byrne, to the Dwelling in January 2016. The Tribunal is satisfied
that Mr Byrne was entitled to call to the Dwelling to discuss the issue of rent arrears which
had not been paid since 25 October 2015. Sadly, the Respondent’s mother had died and
the Respondent Tenant was not in the Dwelling at the time. It is clear from Mr Byrne’s
email of 19 January 2016 that as well as offering his condolences to the Respondent
Tenant on the death of his mother, Mr Byrne also requested the Respondent Tenant to
contact him on his return to Ireland to discuss the rent arrears. There was no evidence
that Mr Byrne called to the Dwelling on a second occasion while the Respondent Tenant
was not there. In the circumstances the Tribunal is satisfied there was no breach of
section 12(1)(a) of the Act.
Finding 4:
The Tribunal finds that the Appellant Landlord was in breach of section 12(1)(b)(ii) of the
Act i.e. to carry out repairs to the interior of the Dwelling and to replace fittings in the
Dwelling from time-to-time.
Reason:
The Tribunal is satisfied there was some delay between 4 September 2015, when the
problem with the boiler was notified to the Appellant’s agent, and 13 October 2015 when
the boiler was repaired. It seems this problem got worse and on 9 October 2015 the
Respondent Tenant had messaged the Appellant’s agent that he had no hot water. Mr
Duffy replied on the morning of 10 October 2015, which was a Friday, and the boiler was
repaired on Tuesday 13 October 2015. It appears there still a problem with the timer on
the boiler even after those repairs were carried out.
The Tribunal is not satisfied that the Respondent Tenant did not have any hot water
during that period, rather it seems that the booster switch was working, but not the timer.
It seems that the Respondent had a reduced supply of hot water. The delay between 4
September 2015 and 13 October 2015 was not adequately explained by the Appellant’s
agents at the hearing. The Tribunal takes into account that repairs were carried out on 13
October 2015. Although the Respondent Tenant complained that the problem was not
properly fixed even after 13 October 2015. However, in his message on 14 October 2015
the Respondent Tenant acknowledged that the booster switch was working for “30 mins”.
There was very little by way of evidence that the Respondent Tenant had notified the
Appellant’s agent of any problemagain after 14 October 2015, until his email to Mr Byrne
on 19 January 2016. Mr Byrne in his replying email said he would contact maintenance
staff about repairs and would arrange for the maintenance manager to attend a meeting
with the Respondent Tenant when he returned to Ireland. In all the circumstances the
Tribunal finds there was a breach of section 12(1)(b)(ii) of the Act, and awards the
Respondent Tenant damages of €1,100.00 for the inconvenience caused, particularly as
a result of the unexplained delay between 4 September and 13 October 2015.
8. Determination:
Tribunal Reference TR0416-001735
In the matter of Rod Flynn (Landlord) and Abdul Mateen (Tenant) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
The Respondent Tenant shall pay the total sum of €1,783.00 to the Appellant Landlord
within 28 days of the date of this Order. This sum represents rent arrears of €3,733.00,
less the full amount of the justifiably retained security deposit of €1,100.00, and less
the sum of €1,100.00 in damages for breach of the Appellant Landlord’s obligation to
carry out repairs to the Dwelling, plus damages of €250 in respect of deterioration
caused to the dwelling and for breach of the Respondent Tenant’s obligations pursuant
to section 16(f) of the Residential Tenancies Act 2004, in respect of the tenancy of the
dwelling at 11 Cedar Brook Place, Cedar Brook, Cherry Orchard, Dublin 10, D10KX09,
Ireland
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
27 July 2016.
Signed:
Gerard Murphy Chairperson
For and on behalf of the Tribunal.

 

Griffin v Condon

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001751 / Case Ref No: 0316-24610
Appellant Landlord: Daniel Griffin
Respondent Tenant: Niall Condon
Address of Rented Dwelling: 19 Cherry Lodge, Farmleigh Woods, Castleknock,
Dublin 15 , Dublin 15, D15Y162
Tribunal: Finian Matthews (Chairperson)
Andrew Nugent, Siobhan Phelan
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 24 June 2016 at 10:30
Attendees: Daniel Griffin (Appellant Landlord)
In Attendance: WordWave International
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 15 April 2016. The Adjudicator determined that:
1. The Respondent Tenant shall pay the total sum of €3,979.85 to the Applicant
Landlord by three consecutive payments of €1,000.00 on the 28th day of each
month, followed by one payment of €979.85 on the 28th day of the immediately
succeeding month, commencing the next month after the date of issue of this Order,
being damages of €5,579.85 for breach of tenant obligations not to cause damage
over and above normal wear and tear, having deducted the entire of the justifiably
retained security deposit of €1,600.00, in respect of the tenancy of the dwelling at 16
Cherry Lodge, FarmleighWoods, Castleknock, Dublin 15, D15Y162;
2. The enforcement of the Order for such payment of €3,979.85 will be deferred
and the total sum owing reduced by the cumulative sum paid in the monthly
instalment(s) made by the Respondent Tenant to the Applicant Landlord on each due
date until such time as the total sum of €3,979.85 has been paid in full;
3. 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 of any such monthly payment shall immediately become due and owing to the
Applicant Landlord.
Subsequently the following appeal was received from the Landlord on 30 April 2016. The
grounds of the appeal are Rent arrears and Other.The appeal was approved by the Board
on 03 May 2016
The RTB constituted a Tenancy Tribunal and appointed Finian Matthews, Siobhan
Phelan, Andrew Nugent 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 20 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 24 June 2016 the Tribunal convened a hearing at the Abbey Room, Wynn’s Hotel,
Middle Abbey Street, Dublin 1.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
Opening the Tribunal the Chairperson stated that it had been established to hear an
appeal by the Appellant Landlord against a determination made following an adjudication
held on 15 April, 2016 in the case of a dispute between the Landlord and the Respondent
Tenant in respect of a tenancy at 19 Cherry Lodge, Farmleigh Woods, Castleknock,
Dublin 15. D15Y162. He introduced the members of the Tribunal to the attending party,
noting that the Tribunal had confirmed that the Respondent Tenant was on notice of the
date, time and venue for the hearing.
He asked the party present to identify himself and to state the capacity in which he was
attending the Tribunal hearing. He confirmed with the attending party that he had
received the relevant papers from the RTB in relation to the case and that he had
received and understood the RTB document entitled “Tribunal Procedures”. The
Chairman said that he would be happy to clarify any queries in relation to the procedures
either then or at any stage over the course of the Tribunal hearing.
The Chairperson then explained that the Tribunal hearing, as stated in its procedures,
was not intended to be very formal, but that the attending party 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 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 RTB through the
courts and a successful conviction could result in a fine of up to €4,000 or up to 6 months
imprisonment or both.
The Chairperson added that the Appellant Landlord would be invited to present his case
and that members of the Tribunal would ask questions from time to time. He also said
that at the end of the hearing, the Appellant Landlord would be given the opportunity
make a final submission should he so wish.
The Chairperson reminded the attending party that that the Determination Order of the
RTB, based on the report of the hearing, would decide the issues in dispute between the
parties and could be appealed to the High Court on a point of law only.
The Appellant Landlord was sworn in.
5. Submissions of the Parties:
Appellant Landlords Case:
The Appellant Landlord stated that he accepted the total award of €5,579.85 made to him
by the adjudicator, but wished to appeal against the deduction of the deposit of €1,600
paid to him by the Respondent Tenant on the basis that the tenant had not paid his final
monthly rental payment of €1,600. He referred the Tribunal to bank statements which he
had supplied showing the rental payments made by the Respondent Tenant including the
monthly payment for September, 2015 made on 7 September, 2015. He said that no
further rent had been paid after September, 2015.
Asked why the rental payments were made into the account of Mrs. Paula Griffin the
landlord said this was his wife’s account, but that he was the sole landlord in relation to
the tenancy. He referred to the terms of the letting agreement entered into with the tenant
under which the rent was to be paid by way of one monthly payment on or before the 15th
day of each month into the account of Paula Griffin. The rental monies were then
transferred each month from that account to the landlord’s own account. The landlord
said that the tenant had been notified numerous times that the final month’s rent was
overdue and he referred the Tribunal to various e-mails sent to the tenant in that regard.
He pointed in particular to an e-mail dated 9 November, 2015 to the tenant stating that
the rent for October, 2015 was 25 days late and must be paid immediately.
Asked why there was no reference in the dispute application form he had submitted to the
RTB to the outstanding monthly rental payment, the Appellant Landlord said that this had
been raised with the adjudicator on the day of the adjudication and he did not know why
the adjudicator had not dealt with this issue in his report, suggesting that the adjudicator
may have assumed that the rent had been paid when this was not in fact the case. He
confirmed that the adjudicator had before him the bank statements setting out the rental
payments made by the tenant. The landlord added that the tenant had provided no
evidence to show that the last month’s rent had been paid, even though he was required
to make this payment under the letting agreement.
The landlord stated that he had suffered financial hardship as a result of the tenant’s
failure to pay the final month’s rent because he was unemployed at the time and was
dependent on the rental income to pay the mortgage on the dwelling. He said he had to
borrow from relatives to pay his mortgage. The landlord also pointed out that the tenant
had agreed to move out of the dwelling on 14 November, 2015 but refused to hand over
the keys and accused the landlord of locking him out. In response to that he had been
able to show through CCTV coverage that the tenant still had access to the dwelling.
The landlord added that he could not say exactly when the tenant left but CCTV evidence
had shown that he still had access to the dwelling on 15 November, 2015. He added that
after the tenant left he attempted to contact him to get the keys returned in response to
which the tenant told the landlord not to contact him again.
The landlord said that he subsequently received the keys in the post on 19th November,
2015. As a precaution he delayed re-entry to the dwelling until 24th November, 2015 on
which date he entered and found that the tenant had caused considerable damage to the
dwelling. He said that he engaged a locksmith to assist him with re-entry and the
locksmith advised him that his company had in fact changed the locks earlier on 31
October at the request of the Respondent Tenant.
The landlord also said that the tenant had agreed to leave on 14 November, 2015 and he
could not understand the tenant’s refusal to leave and his vindictiveness at the end of the
tenancy. He added that the whole situation had become a nightmare for both him and his
wife who had been very stressed by the situation. He said that the dwelling had been his
family home, which he had been forced to rent out, adding that he had obliged the tenant
in every way he could over the course of the tenancy and could not understand the
attitude the tenant had adopted.
The landlord also said that he would prefer to get anything the tenant owed him in one
lump sum, but accepted that the question of payment by way of instalments was a matter
for the Tribunal.
Respondent Tenants case:
The Respondent Tenant did not attend the hearing nor did he make any written
submissions prior to the hearing.
The Chair advised the attending party that following the hearing the Tribunal will prepare
a report and make its Determination in relation the dispute and will notify the RTB of that
Determination. He then declared the hearing closed.
6. Matters Agreed Between the Parties
Not applicable
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence
presented at the hearing, the Tribunal’s findings and reasons therefor are set out
hereunder.
Finding 7.1: The security deposit paid by the Respondent Tenant has been lawfully
retained by the Appellant Landlord
Reason: Under sub-section (1)(d) of section 12 of the Act, the Appellant Landlord was
obliged, subject to sub-section (4) of section 12, to return or repay promptly the deposit
paid to him by the Respondent Tenant on his entering into the Tenancy Agreement.
Sub-section (4) of section 12 of the Act provides that no amount of a deposit is required
to be returned where rent is in arrears and the amount of such arrears is equal to or
exceeds the deposit. The Tribunal is satisfied that the Respondent Tenant owed one
monthly rental payment at the date on which the tenancy terminated. As the amount
involved was equal to the deposit, the Respondent Landlord is entitled to retain that
deposit.
Finding 7.2:The Respondent Tenant was in breach of his obligations under section 16(l)
of the Act.
Reason: Under sub-section (l) of section 16 of the Act, a tenant must not alter or improve
a dwelling without the written consent of the landlord. The Tribunal is satisfied on the
evidence that on or about the 31 October, 2015, the Respondent Tenant arranged for the
locks on the dwelling to be changed, which work was in breach of the provisions of the
said sub-section of section 16.
Finding 7.3:The Respondent Tenant was in breach of his obligations under section 16(f)
of the Act.
Reasons: Under sub-section (f) of section 16 of the Act, a tenant must not do anything
that would cause deterioration in the condition a dwelling was in at the commencement of
a tenancy dis-regarding any deterioration owing to normal wear and tear, having regard to
the length of the tenancy and the extent of the occupation of the dwelling. The Tribunal is
satisfied on the evidence that in causing damage to kitchen units, tiles, equipment and
furniture and other items in the dwelling, in removing a number of items from the dwelling
and in failing to clean the dwelling adequately on his departure, the Respondent Tenant
caused a deterioration in the condition of the dwelling beyond normal wear and tear. On
the basis of invoices and receipts supplied by the Appellant Landlord supporting costs
incurred in rectifying damage to the dwelling beyond normal wear and tear in the amount
of €3,332.15 the Respondent Tenant is found to be liable for payment of this amount to
the Appellant Landlord.
Finding 7.4: The Appellant Landlord is entitled to damages in the amount of €1,247.70
for losses incurred in respect of rent foregone as a result of the delay in re-letting the
dwelling after the tenant vacated.
Reasons: The Respondent Tenant agreed to vacate the dwelling on 14 November, 2015.
On that understanding the Appellant Landlord found a new tenant who was due to take
up occupation on 18 November, 2015. However, the condition in which the tenant left the
dwelling resulted in it not being possible to have the dwelling ready for letting on that
date, and the landlord was compelled to defer the proposed re-letting until 12 December,
2015. On that basis the landlord has claimed for loss of rent from 18 November to 12
December, 2015 – a period of 23 days at a rent of €54.24 per day. The Tribunal calculates
the daily rent to be €52.60 (€1600 multiplied by 12 and divided by 365). On that basis the
Tribunal accepts the landlord’s claim for 23 days loss of rent and proposes to award
damages in the amount of €1,209.80 (€52.60 multiplied by 23) in compensation for that
loss of rent.
In exercise of its powers, therefore, under section sub-section (1)(d) of section 115 of the
Act the Tribunal directs that additional damages in the amount of €1,209.80 shall be paid
by the Respondent Tenant to the Appellant Landlord.
Finding 7.5: The Appellant Landlord is entitled to additional damages in the amount of
€1,000 in respect of breaches by the Respondent Tenant of his obligations under the Act.
Reason: The Tribunal is satisfied that the Appellant Landlord has suffered loss, expense
and inconvenience as a result of the breaches by the Respondent Tenant of the
provisions of Act relating to his obligations under the tenancy, including his obligations in
relation to the payment of rent. The Tribunal considers that the appropriate quantum of
damages to award to the Appellant Landlord in the circumstances of this case is €1,000.
In exercise of its powers, therefore, under section sub-section (1)(d) of section 115 of the
Act the Tribunal directs that additional damages in the amount of €1,000 shall be paid by
the Respondent Tenant to the Appellant Landlord.
8. Determination:
Tribunal Reference TR0416-001751
In the matter of Daniel Griffin (Landlord) and Niall Condon (Tenant) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
1. The deposit paid by the Respondent Tenant has been lawfully retained by the
Appellant Landlord.
2. The Respondent Tenant shall pay the total sumof €5,541.95 to the Applicant
Landlord by way of 5 consecutive payments of €1,000.00 on the 28th day of each
month, followed by one payment of €541.95 on the 28th day of the immediately
succeeding month, commencing the next month after the date of issue of this Order,
being €3,332.15 in respect of costs incurred in rectifying deterioration caused in the
condition of the dwelling above normal wear and tear, damages of €1,209.80 in
respect of losses incurred as a result of delay in re-letting the dwelling and damages of
€1,000 for inconvenience and losses incurred as a result of breach of tenant
obligations in respect of the tenancy of the dwelling at 16 Cherry Lodge, Farmleigh
Woods, Castleknock, Dublin 15, D15Y162;
3. The enforcement of the Order for such payment of €5,541.95 will be deferred
and the total sum owing reduced by the cumulative sum paid in the monthly
instalment(s) made by the Respondent Tenant to the Applicant Landlord on each due
date until such time as the total sumof €5,541.95 has been paid in full;
4. 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 of any such monthly payment shall immediately become due and owing to the
Applicant Landlord.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
27 June 2016.
Signed:
Finian Matthews Chairperson
For and on behalf of the Tribunal.

 

Haldar v Turkiewicz

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0616-001792 / Case Ref No: 0416-25611
Appellant Landlord: Debaprasad Haldar
Respondent Third Party: Marceli Turkiewicz
Address of Rented Dwelling: 1 Curragh Hall House, Tyrrelstown , Dublin 15,
Tribunal: Mervyn Hickey (Chairperson)
Louise Moloney, Gerard Murphy
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 19 July 2016 at 2:30
Attendees: Debaprasad Haldar (Appellant Landlord)
Marceli Turkiewicz (Respondent Third Party)
In Attendance: DTI Wordwave Recording Technicians
1. Background:
On 14 April 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 20 May 2016. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €800 to the Applicant Third Party
within 28 days of the date of issue of the Order, being damages for the Respondent
Landlord’s breach of duty owed to certain third parties, in failing to enforce tenant’s
obligations, in respect of the tenancy of the dwelling at 1 Curragh Hall House,
Tyrrelstown, Dublin 15.
Subsequently the following appeal was received from the Landlord on 03 June 2016. The
grounds of the appeal are Anti-social behaviour and Other. The appeal was approved by
the Board on 10 June 2016
The RTB constituted a Tenancy Tribunal and appointed Mervyn Hickey, Louise Moloney,
Gerard Murphy as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Mervyn Hickey 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 Tribunal Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
1. Adjudication Report in respect of adjudication which took place on 11 March 2016
between the Appellant Landlord and the Tenant (DR0216-24224).
2. Determination Order in respect of DR0216-24224.
3. Complaint to An Garda Síochána submitted to Fingal County Council.
4. Notice of Termination dated 10 March 2016.
5. Rent Arrears Notice dated 11 February 2016.
6. Email correspondence dated 19 January 2016 and 11 February 2016.
7. Warning relating to anti-social behaviour dated 20 January 2016.
4. Procedure:
The Chairperson asked those 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 RTB in relation to the case, that their correct
names, titles and addresses had been provided and that they had received and
understood the RTB document entitled “Tribunal Procedures”. He inquired as to whether
the parties had further documentation / evidence upon which they sought to rely.
Additional documentation was submitted by the Appellant Landlord without objection by
the Respondent Third Party.
The Chairperson informed those present that the hearing was a public hearing. 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 outlined the order in which the Parties would be requested to present
evidence and in which cross examination of evidence could take place. He said that
members of the Tribunal might ask questions of both Parties from time to time. He
stressed that all evidence would be taken on oath or affirmation and be recorded by the
recording technician 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. He informed those present that it
was an offence to refuse to take an oath/affirmation, to produce any document in her/her
control or to refuse to answer any question, if requested so to do by the Tribunal.
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
enforced by either of the Parties or in some cases by the Board of the RTB at its
discretion. The Parties were informed regarding the possibility of them seeking to resolve
the dispute themselves and that the Tribunal would endeavour to facilitate them in this
regard, if they so wished.
The Parties were informed that details of the hearing and the outcome thereof were
publishable on the website of the RTB. The Chairperson also advised the parties that the
hearing was a de novo hearing of the dispute between the parties, and 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. There were none.
The parties were sworn in.
5. Submissions of the Parties:
• The Appellant Landlord’s Case:
The Appellant Landlord did not dispute that the Tenant had engaged in behaviour of an
anti-social nature. His appeal was based primarily on the finding that he had acted in
breach of duty to the Respondent Third Party to enforce the obligations of the Tenant and
the award of damages made against him as a consequence thereof. The Appellant
Landlord disputed that he had not made reasonable efforts to enforce the Tenant’s
obligations regarding anti-social behaviour.
The Appellant Landlord said that around 15 October 2015, he had received an emailed
complaint from the relevant management company to the effect that the Tenant had been
playing loud music and at unsocial hours, that he was having parties at the dwelling and
that he was not responding to other peoples’ requests for quiet. The Appellant Landlord
said that he was informed by the management company that the Tenant was having
parties at the dwelling that would start on occasion in the afternoon and continue well into
the early hours of the following morning and sometimes even longer.
In response to complaints made known to him by the management company the
Appellant Landlord said he met with the Tenant around 16 October 2015. The Appellant
Landlord had raised the complaints with the Tenant. The Appellant Landlord said that
while the Tenant did not feel he had engaged in anti-social behaviour, he confirmed that
he had had some friends at the dwelling and had played loud music. The Appellant
Landlord said the Tenant had indicated to him that he would take corrective action and
this was the end of their conversation. The Appellant Landlord said that prior to this
complaint the Tenant had had a good record with no problems or complaints.
The Appellant Landlord said he heard nothing further between 16 October 2015 and 16
January 2016. On being questioned by the Tribunal the Appellant Landlord confirmed that
he had not specifically enquired of the management company in the interim regarding the
matter and whether or not there had been any improvement in the Tenant’s behaviour.
He said he had been in contact with the management company during this period
regarding other issues and that he did inform them of his conversation with the Tenant on
16 October 2015. He said that when he had spoken with persons from the management
company during this period he had never been made aware of any further problems with
the Tenant.
On 16 January 2016 the Appellant Landlord received a text message from the
Respondent Third Party in which he complained of loud music having been played by the
Tenant at the dwelling. The Appellant Landlord said that in response to this message he
had telephoned the Tenant but that he had not answered the call. The Appellant Landlord
said he went over to the rented dwelling that evening but that it was not until 19 January
2016 that he had actually been able to meet with the Tenant.
The Appellant Landlord submitted in evidence an email he had sent to the Tenant on 19
January 2016. In the email he referenced “a number of complaints received from (the)
management company and your fellow tenants in the same building”. He also referred to
the Tenant’s promise in October 2015 not to cause further disturbance to other residents.
He informed the Tenant he was in breach of his obligations, that the tenancy could not be
renewed and that the Tenant was to vacate the dwelling “as soon as possible”. He
attached to this email a “Warning Notice for Anti-Social Behaviour”. The email concluded
with the Appellant Landlord seeking that the Tenant contact him to “compromise and
talk”.
The Appellant Landlord said that he received no response to this email. Thereafter, on 20
January 2016 the Appellant Landlord said he delivered by hand to the rented dwelling the
warning notice attached to the email of the previous day. This warning notice referred to
section 16(h) of the Act, the definition of anti-social behaviour contained in section 17 of
the Act (with section 17(c) being highlighted) and put the Tenant on notice that any further
anti-social behaviour on his part or on the part of his visitors to the dwelling would result
in the termination of his tenancy. The Appellant Landlord said this notice was also sent by
post but the Tenant had refused to accept it.
The Appellant Landlord stated that the Tenant had stopped paying rent in December
2015. He said he believed that this was in response to him having raised the issue of the
Tenant’s anti-social behaviour. The Appellant Landlord said that he had sent many
emails, text messages and WhatsApp messages about this but received no response.
The Appellant Landlord gave evidence that the Tenant’s failure to pay rent had resulted in
the Appellant Landlord missing mortgage payments. On 11 February 2016 the Appellant
Landlord emailed and hand delivered to the Tenant a notice of rent arrears. At the date of
hearing of this appeal the Appellant Landlord said the Tenant was still in arrears, having
not paid any rent since 26 February 2016.
The Appellant Landlord said that the next contact he had from the Respondent Third
Party was in or around the middle of February 2016. He said he had kept the Respondent
Third Party up to date with the steps he was taking to enforce the Tenant’s obligations.
He had informed the Respondent Third Party that the matter was with the RTB, that it
was now part of a “process” and that it would take some time to be resolved. The
Appellant Landlord said that he was in contact with the RTB himself in or around this
time.
The Appellant Landlord said he served a Notice of Termination on the Tenant on 10
March 2016. He said he informed the Respondent Third Party that he had done so. The
Appellant Landlord said that on 11 March 2016 he attended at an adjudication hearing
regarding a complaint he had brought against the Tenant for breach of obligation. He said
he had understood from the Respondent Third Party that he would attend at this hearing
to give evidence of the alleged anti-social behaviour and that he might arrange for other
witnesses to attend, however the Respondent Third Party had not attended at the hearing
nor had any other witness on behalf of the Appellant Landlord. The Appellant Landlord
said that as a consequence of there being no witnesses at the adjudication hearing to
substantiate the complaint of anti-social behaviour, that complaint was not upheld. On
being questioned by the Tribunal, he stated that while he wanted to appeal, he had
submitted his appeal one day late.
The Appellant Landlord admitted that he received text messages nearly every week from
the Respondent Third Party regarding loud music, noise, parties and other anti-social
behaviour from January 2016 onwards. He said he had also received correspondence
from the management company in this regard and he was aware that other tenants in the
same building were experiencing the same problems as the Respondent Third Party and
he was liaising with these tenants.
Regarding the Notice of Termination for the non-payment of rent, the date of termination
stated thereon was 10 April 2016. The Appellant Landlord said that the validity of this
Notice had not been dealt with at the first adjudication hearing as it had not been
submitted in evidence by him.
The Appellant Landlord said he had attended at the dwelling in or around mid-April 2016
to speak with the Tenant. On that occasion he said the Tenant had told him to “Go to
RTB”, and he would not engage with him. He said that this was the last conversation he
had had with the Tenant. He said a second Notice of Termination had also been served
by registered post on the Tenant on 27 April 2016 arising from the necessity for him to
take back the dwelling for his parents’ use. He said this was returned undelivered. He
stated his belief that the Tenant was avoiding him.
The Appellant Landlord submitted in evidence a written complaint made to An Garda
Síochána about the anti-social behaviour of the Tenant and dated 1 May 2016. He also
stated that he had brought this complaint to the attention of Fingal County Council. He
said that neither body was in a position to progress the issue as it was a civil matter
between him and the Tenant. After this the Appellant Landlord said he consulted with a
solicitor in May 2016 and he was advised to have the RTB deal with the matter.
In conclusion, the Appellant Landlord apologised to the Respondent Third Party for the
anti-social behaviour he had experienced. He said he had made good efforts to
communicate with the Tenant and to advise him to be a good tenant and to cease playing
loud music. He had given him notices in writing and had brought a complaint to the RTB
when the behaviour persisted. He said the Tenant would not engage with him and that he
himself was often intimidated by the large numbers of people at the dwelling. He said he
had been greatly hampered by the Respondent Third Party’s non-attendance at the
adjudication hearing on 11 March 2016. He said that he was personally affected by the
Tenant’s breaches of obligation in that he could not make his own mortgage payments
due to the non-payment of rent by the Tenant. He said he had served two Notices of
Termination. He said that the Notice of Termination dated 10 March 2016 was the Notice
issued in respect of arrears of rent and he confirmed that no reference was made in this
Notice to anti-social behaviour. The Appellant Landlord confirmed that he had issued a
second Notice of Termination in April 2016 with a termination date of 4 June 2016 as he
needed the dwelling for his family’s use. He said the Tenant was avoiding him. He felt he
had done his best in the circumstances and queried what more he could have done. He
said the “real solution” to the situation was for the Tenant to vacate the dwelling.
The Respondent Third Party’s Case:
The Respondent Third Party said that he had moved into an apartment in the same
building as the rented dwelling, being directly above it. He said he moved into this
apartment on 2 December 2015. On his very first Saturday night in the apartment he said
that there was a party in the rented dwelling that went on through the night and until the
following afternoon with a large number of people making noise on the balcony and loud
music being played even at unsocial hours. The Respondent Third Party contacted the
management company on the following Monday. They would not identify the Appellant
Landlord to him but indicated they would make contact with the Landlord. The
Respondent Third Party said this situation repeated itself every weekend on both Friday
and Saturday nights and sometimes on Sundays if there was a bank holiday. His
evidence was that with the exception of a few weeks in May and when he was away from
the dwelling, this pattern of anti-social behaviour repeated itself every Friday and
Saturday night.
The Respondent Third Party said he was eventually able to identify the Appellant
Landlord in mid-January 2016. He went to speak with him in or around this time. He said
the Appellant Landlord promised to resolve the problems but that there had been no
improvement. He said that on 30 January 2016 he texted the Appellant Landlord at
approximately 4.00am regarding the same issues. He said the Appellant Landlord’s
response was that there was nothing he could do.
The Respondent Third Party said he had sent many messages and made calls to the
Appellant Landlord. He said he realised however that there was little the Appellant
Landlord could do in the early hours of the morning if the Tenant was having a party. He
said that he had attended with the Appellant Landlord at the dwelling on occasion and
observed the Tenant not engaging with the Appellant Landlord. He agreed that the
Appellant Landlord had kept him informed of the steps being taken at all relevant times.
The Respondent Third Party said that he had called An Garda Síochána about the
Tenant’s behaviour on a number of occasions but that he had been told that this was a
civil matter with which An Garda Síochána could not get involved.
Regarding the Appellant Landlord’s claim against the Tenant, the Respondent Third Party
said that he had been unable to attend to give evidence for the Appellant Landlord at the
previous adjudication on 11 March 2016 due to work commitments. He said he had
telephoned the Appellant Landlord in advance to tell him of his unavailability and that he
had left a message with a person he believed to be the Appellant Landlord’s wife for the
Appellant Landlord to contact the Respondent Third Party. He said he had also sent a
text message to the Appellant Landlord to contact him.
He read from a number of text messages sent by / to the Appellant Landlord. It was
apparent from same that the Appellant Landlord had been unhappy that no witnesses had
attended at the adjudication hearing initiated by him against the Tenant. In one of these
texts the Appellant Landlord had said that he would not be responsible for what happened
after that. The Appellant Landlord accepted the contents of the messages read out by the
Respondent Third Party to be true.
He said he had been agreeable to providing a written statement of his evidence for the
previous adjudication in March but that this had not been possible. He said that it was
because of this that he had referred his own dispute against the Appellant Landlord for
adjudication.
The Respondent Third Party gave evidence that he had tried on a number of occasions to
make contact with the Tenant. He had knocked on doors, windows, at the balcony but on
each occasion he received either no response or a hostile response from those present.
The Respondent Third Party submitted that the Tenant’s anti-social behaviour pre-dated
his tenancy. He said that he was aware from other tenants near the rented dwelling that
they too had made complaints to the Appellant Landlord regarding the Tenant’s antisocial
behaviour. He did not understand why this behaviour had not been addressed at
an earlier stage given its duration. He also did not understand why the Appellant Landlord
had not made enquiries of the management company to see if the behaviour had stopped
prior to the Respondent Third Party making contact with him directly in January 2016. In
this regard, he said he had made two complaints to the management company in
December 2015 but he had been told that the management company would contact the
Appellant Landlord and the Tenant themselves about the complaints.
In conclusion, the Respondent Third Party submitted that he simply wished to be able to
sleep at night in his apartment. He wanted the Tenant gone from the dwelling.
6. Matters Agreed Between the Parties
1. The Tenant of the dwelling is Thomas Roche.
2. The address of the rent dwelling is 1 Curragh House Hall, Tyrrelstown, Dublin 15.
3. The tenancy commenced on 4 August 2014.
4. The Tenant remains in occupation of the rented dwelling.
5. The Tenant has engaged and continues to engage in anti-social behaviour.
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 Tenant of the dwelling of 1 Curragh House Hall, Tyrrelstown, Dublin 15 is behaving
within and/or in the vicinity of the dwelling in a way that is anti-social within the meaning
of section 17(c) of the Act and the Tenant is allowing other occupiers of, or visitors to, the
dwelling to behave in such a way.
Reasons:
The Appellant Landlord did not dispute that the Tenant had engaged in behaviour of an
anti-social nature within the meaning of section 17(c) of the Act. He acknowledged
receiving complaints from the Respondent Third Party regarding the Tenant playing loud
music and making noise at unsocial hours and for long periods and having large numbers
of people at the dwelling for parties and making noise and behaving in an anti-social
manner, on the overwhelming majority of weekends for a period of approximately six
months. The Tribunal accepts the unchallenged evidence of the Respondent Third Party
in this regard.
Finding No. 2
The Appellant Landlord is in breach of his duty to enforce the obligations of the Tenant
under the tenancy and in particular the Tenant’s obligation under section 16(h) not to
behave in a way that is anti-social within the meaning of the Act.
Reasons:
The Tribunal notes that the Appellant Landlord did make efforts to enforce the Tenant’s
obligations. He was met, invariably, with resistance and/or avoidance from the Tenant.
The Tribunal also notes that the Appellant Landlord did keep the Respondent Third Party
involved and updated as to his efforts to resolve matters. Notwithstanding the foregoing
however, the Tribunal is not satisfied that the Appellant Landlord did all that he might
reasonably have done or indeed with the degree of urgency that was required in all of the
circumstances. To that extent the Appellant Landlord is in breach of his obligations
provided for under section 15(1) of the Act. At the date of hearing, the Tenant remained in
occupation of the dwelling having engaged in anti-social behaviour on a nearly weekly
basis for a period of approximately 7 months. The Tribunal is satisfied there was delay
between December 2015 and February 2016, during which period the Respondent Third
Party suffered inconvenience as a result of the Tenant’s anti-social behaviour and the
Appellant Landlord was aware of previous complaints of anti-social behaviour and yet did
not respond appropriately, in particular to the complaints made by the Respondent Third
Party around January 2016.
The Appellant Landlord was aware from at least 15 October 2015 that the Tenant was
engaging in behaviour of an anti-social manner. This was prior to the Respondent Third
Party taking up occupation in a neighbouring apartment. The Appellant Landlord was also
aware that a number of neighbouring tenants had complained regarding this behaviour
and that the Tenant was not engaging with them. While he was in contact with the
management company thereafter on other issues the Appellant Landlord never enquired
regarding the Tenant’s behaviour. The Tribunal accepts the evidence of the Respondent
Third Party that he made two complaints to the management company in December 2015
regarding the Tenant’s anti-social behaviour. On balance, the Tribunal is satisfied that
those complaints were forwarded to the Appellant Landlord in December 2015, and the
Appellant Landlord did not take any steps to contact the Respondent Third Party at that
time.
While the Appellant Landlord responded to complaints made to him directly by the
Respondent Third Party in and after January 2016, by making contact with the Tenant
and serving notices on him, only one such notice (a warning notice) pertained to alleged
anti-social behaviour. The Notice of Termination served by the Appellant Landlord on the
Tenant dated 10 March 2016 related to the issue of rent arrears rather than anti-social
behaviour. The Appellant Landlord could have served a Notice of Termination in relation
to anti-social behaviour earlier than 10 March 2016, and the Appellant Landlord has not
explained why he did not take that step.
When the Appellant Landlord pursued complaints regarding rent arrears, overholding and
anti-social behaviour, none of these claims were upheld at adjudication in March 2016
due to the inadequacy of the Appellant Landlord’s evidence. The Respondent Third Party
must share some responsibility in that regard for not being able to attend the adjudication
hearing in March 2016.
The Tribunal must have regard to the inconvenience suffered by the Respondent Third
Party between December 2015 (when he made complaints to the management company
which, the Tribunal is satisfied, were forwarded to the Appellant Landlord) and March
2016 when the first Notice of Termination was served. The Tribunal is satisfied that the
Appellant Landlord delayed contacting the Respondent Third Party, and delayed taking
appropriate action to deal with the persistent problem of anti-social behaviour, including
by not serving a Notice of Termination earlier than 10 March 2016.
On the other hand, the Tribunal must also take into account that if the Respondent Third
Party had attended the adjudication on 11 March 2016 this may have resulted in matters
being dealt with in a timelier manner. The Respondent Third Party has not adequately
explained why he did not attend that adjudication hearing: even if he was unable to get
time off work, he could have arranged for a representative or another tenant in the
apartment building to attend on his behalf.
When a third party wishes to make a complaint in relation to alleged anti-social behaviour
using the dispute resolution process of the RTB, whether directly by making a complaint
against a landlord or indirectly by agreeing to act as a witness in respect of a dispute
between a landlord and a tenant, it is important for a third party to engage fully with that
dispute resolution process including by attending a hearing to give evidence. It is
important for a third party complainant to understand that a landlord will often incur
expenses by referring a dispute to the RTB, and therefore, for that reason alone a third
party complainant is expected to engage fully with the dispute resolution process.
Furthermore, there is a clear requirement in section 77(2)(b) of the Act for a third party to
take “all reasonable steps to resolve the matter”.
The Tribunal notes that the validity of the Notice of Termination dated 10 March 2016 was
not in fact adjudicated upon as it was not submitted in evidence by the Appellant Landlord
at the adjudication on 11 March 2016. The adjudicator could not have adjudicated on the
Notice of Termination at that adjudication as the period of notice had not expired and it
was not a matter for the adjudicator to determine as the Notice had only been served the
day before that adjudication. It appears that the Appellant Landlord has not taken any
steps to enforce that Notice of Termination or to bring a complaint of over-holding against
the Tenant before the RTB. The Appellant Landlord may have been under the impression
that the Notice of Termination had been adjudicated upon at the previous adjudication on
11 March 2016; however, the Tribunal is satisfied that is not that case. No determination
has been made in relation to the validity or otherwise of the Notice of Termination dated
10 March 2016.
The Tribunal is satisfied that prior to referring his complaint to the RTB the Respondent
Third Party, in compliance with the requirements of section 77(2)(b) of the Act, attempted
to communicate with Tenant and did communicate with the Appellant Landlord and took
all reasonable steps to resolve the matter, including by making a complaint to the
management company.
The Tribunal is further satisfied that the Respondent Third Party has been directly and
adversely affected by the Appellant Landlord’s breach of duty (section 15(1) of the Act)
over an extended period in that his peaceful occupation has been interfered with by the
Tenant and he has been inconvenienced thereby. For the foregoing reasons the Tribunal
awards damages to the Respondent Third Party in the sumof €800.00.
8. Determination:
Tribunal Reference TR0616-001792
In the matter of Debaprasad Haldar (Landlord) and Marceli Turkiewicz (Third Party)
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 €800.00 to the Respondent Third
Party within 28 days of the date of issue of the Order by the Board, being damages for
the Appellant Landlord’s breach of duty owed to the Respondent Third Party, in failing
to enforce tenant’s obligations, in respect of the tenancy of the dwelling at 1 Curragh
Hall House, Tyrrelstown, Dublin 15.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
03 August 2016.
Signed:
Mervyn HickeyChairperson
For and on behalf of the Tribunal.

Hutchinson v Healy

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0515-001177 / Case Ref No: 0215-16817
Appellant Landlord: Maria Hutchinson, John Hutchinson
Respondent Third Party: Phyllis Keeley
Address of Rented Dwelling: 16 The Elm, Parkview, Belarmine Avenue, Stepaside , Dublin,
Tribunal: Aidan Brennan (Chairperson)
Anne Colley, Mary Doyle
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2,
Date & time of Hearing: 17 September 2015 at 10:30
Attendees: Maria Hutchinson (Appellent Landlord)
John Hutchinson (Appellent Landlord)
Phyllis Keeley (Respondent Third Party)
Mark De Boer (Appellant Landlord’s witness and tenant);
Olivia Keeley (Third Party Advocate, joint owner and witness)

In Attendance:
Gwen Malone stenographers
1. Background:
On 19 February 2015 the Third Party made an application to the Private Residential Tenancies Board (the PRTB) pursuant to Section 77 of the Residential Tenancies Act 2004 (hereafter referred to as the Act). The matter was referred to an Adjudication which took place on 08 April 2015. The Adjudicator determined that:
1. The Respondent Landlords shall, within 14 days of the date of issue of the Order, pay to the Applicant Third Party the sum of €2000 in damages for the consequences of the breach by the Respondent Landlords of their obligation pursuant to section 15 of the Residential Tenancies Act 2004.
2. The Respondent Landlords shall, within 28 days of the date of issue of the Order, in compliance with the relevant provisions of the ownership lease in respect of the dwelling, carry out all remedial measures necessary to sound-insulate the floors of the rented dwelling.
3. The Respondent Landlords shall furnish the Applicant Third Party copies of all receipts for works carried out to improve the sound insulation of the floors of the dwelling within 14 days of the completion of the works and shall make arrangements within that 14 days for the Applicant Third Party, or her agent, to inspect the measures that have been put in place to improve the sound insulation of the dwelling.
An appeal was received from the Landlords on 19 May 2015. The ground of the appeal was breach of landlord obligations. This appeal was approved by the Board of the PRTB on 05 June 2015.
The PRTB constituted a Tenancy Tribunal and appointed Aidan Brennan, Anne Colley and Mary Doyle as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Aidan Brennan to be the chairperson of the Tribunal (the Chairperson).
On 26 August 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 17 September 2015 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
N/a
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 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 Appellants would be invited to present their case first; that there would be an opportunity for cross-examination by the Respondent Third Party; that the Respondent Third Party would then be invited to present her 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 said that all evidence would be taken on oath or affirmation and be recorded by the official stenographer present and he reminded the Parties that knowingly providing false or misleading statements or information to the Tribunal was an offence punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing the Board would make a Determination Order which would be issued to the parties and could be appealed to the High Court on a point of law only
The parties intending to give evidence were sworn in.

5. Submissions of the Parties:
Appellant Landlords:
Evidence of John Hutchinson
The landlord said they met the respondent third party, Ms Phyllis Keeley, only once, and only received one letter from the management company of the apartment block about the noise complaint. The dwelling is on the 2nd floor and the third party’s apartment is on the 1st floor. The apartments were constructed about 2006 and the BER rating was stated to be B2. It is a corner apartment and only touches another apartment on one wall on that floor. There are two balconies. They bought the apartment in 2014 as second owners from new. There are about 6 apartments on each floor and 5 floors.
Their meeting was cordial despite the fact that the meeting occurred as Ms Keeley had come to their apartment to complain about the noise she and her daughter were experiencing from the landlord’s apartment while he and his wife were readying it for letting. Various concerns were also expressed by the third party about the neighbourhood and also the construction of the building. They have now received with the PRTB papers a copy of a letter sent by the third party to the builders in 2008 complaining about the structure and finish of the building. They had employed an agent to ensure they would get a suitable tenant who would be quiet and fit in and they have never had any difficulty at all with the current tenants. When the landlord received a letter on 17 September 2014, through the agent, from the management company complaining about doors banging and constant noise coming from the rented apartment he was very upset to hear of the complaint by the third party. He immediately went to the apartment and adjusted the door closers (one of the doors was banging) and made sure the mats on the floors in the circulation area and under the dining table and chairs that they had supplied to the tenants were still there. He reported his actions back to the agent and the agent said she would let the management company know and, at his request, ask them for the information about the original sound insulation. They then heard nothing further until they received the PRTB documents which included a letter dated 19 February 2015 (P 3 of 59 in case file 1), a letter from the third party to the PRTB, setting out her complaint.
Mr Hutchinson went through his surveyor’s report for the Tribunal, which was based primarily on an inspection of the floor by opening a strip at the threshold between the wooden flooring in the living/dining area and the tiled floor in the kitchen. The surveyor stated in the report that as far as he could determine the sound proofing fully complies with the Building Regulations and appears reasonable in this circumstance.
Evidence of witness Mark De Boer for the Landlords.
The landlords’ witness said that he and his partner work 5 days a week, he leaves at about 7-7.30 gets back around 6 or even as late as 8. He works on Dutch time. His partner is out two days a week until 11pm doing her Masters, and he often picks her up late in the evening. They are therefore not at home a lot of the time. She also works full time and studies at the weekends and also in the evenings at home, and so needs a quiet environment. If they are not working or studying they would go out of the apartment to meet people etc. When they heard there was a noise problem they took greater care. They don’t hear anything much from the apartment that is over theirs, just the sound of heels from time to time. He sometimes works from home and he needs peace and quiet when he works there and both of them find it quiet in the apartment.
In his closing summary to the Tribunal the landlord said that the surveyor’s report shows that there was no difference in the layers underneath the floor and it is level throughout and he did not think there was any need to lift the floor to establish that. He knows that their apartment complies with Building Standards and he relies on that report. He said that sound travels up as well as down so if the third party can hear noises from the dwelling the television downstairs should also be audible in No 16. The tenants have renewed the lease and wouldn’t have done so if there was a lot of noise. He wants an order that says he has complied with his obligations.
Respondent Third Party:
Evidence of Olivia Keeley.
The witness for the third party said that there is obviously a real problem for them otherwise they would not have pursued the case. An idealistic situation was portrayed by the landlords as they know what they are hearing. There are 380 units in all the development, and each unit is made up of 2 prefabricated pods. Their unit is triple aspect and L shaped and they bought “off the plans”. The steel construction in the units allows vibration to pass through the surfaces causing the noise. Cork matting, which should have been laid at construction stage all over the floors, with no gaps, was not properly put down. The third party had put in additional insulation under their own flooring. She was on the management committee for a period and knew that many of the initial owners had serious concerns about the noise proofing. She gave a full description of the noise problem throughout the development and wants to have a portion of the flooring in the overhead apartment lifted by an independent person as she believes that the previous owner took up the essential original insulation layer. She clearly identified to the Tribunal that the noise is due to a floor issue caused by defective workmanship in the overhead apartment and she stated that no matter who moves in or lives overhead there will always be noise; floor noise transfer is the issue and whether rented or owned it will be an issue and the problem is with the apartment not with the tenant.
They had always experienced noise problems, even for the period when there was an owner occupier in the rented dwelling, when the noise was in fact worse than it is now. She had consulted a firm who said they could put in equipment to test the noise, but it would have cost €600, which she and her mother could not afford.
The Chairperson referred to the provisions in Sec. 17 of the Act and the strict confines of the terms of that section in the definition of what constituted anti social behaviour.
The third party witness said their only problem is the insulation layer between the apartments, not the other issues she had mentioned in her evidence or that were discussed between her mother, the other third party, and the landlord. They are not satisfied that the insulation of the floor has been looked at seriously enough. Noise from the unit directly above them is causing them great distress and difficulty, necessitating the use of sleeping pills and ear plugs, and they cannot hear their television in their living room. She wants an order to have the floor in the overhead apartment lifted and examined independently and suggested the cost would be about €2,500. They understand that living in an apartment is different to a house.

Evidence of Phyllis Keeley:
The third party respondent gave background evidence concerning the purchase of the apartment and her attachment to the area. She outlined the noise difficulties over the years including years when the tenants the subject of the dispute were not living in the apartment. Throughout the hearing she corroborated the evidence given by her witness and clarified any points raised.
6. Matters Agreed Between the Parties
N/a
7. Findings and Reasons:
The Tribunal finds that the tenants in the dwelling at Apartment 16 The Elm, Parkview, Belarmine, Stepaside, Dublin 18 are not in breach of their obligations under section 16 (h) of the Act in that they do not behave within the dwelling in a way that is anti social within the meaning of the Act, and within the definition of anti-social behaviour in section 17(1) (c) (ii) of the Act. Accordingly the Tribunal finds that the landlord is not in breach of his duty under section 15 of the Act in enforcing the tenants’ obligations in the matter of alleged anti social behaviour.
Reason:
Under Section 15(1) of the Residential Tenancies Act 2004, a landlord of a dwelling owes to each person, who could be potentially affected a duty to enforce the obligations of the tenant(s) under the tenancy. In cases where a landlord fails to enforce a tenant’s obligation under Section 16 of the Act, a directly and adversely affected individual may bring a dispute against the landlord through the Private Residential Tenancies Board. The affected individual must first attempt to resolve the matter directly with the parties to the tenancy as is required under sec. 77 of the Act. The Tribunal is satisfied that the Third Party made reasonable and sufficient attempts to resolve the dispute by engaging with the parties to the tenancy and communicated with the landlord. They also researched the subject and obtained significant data which led them to believe that the underlying problem was the standard and quality of the flooring in the overhead apartment the tenancy of which was the subject of this dispute. The third party had also put forward possible solutions.
In this dispute the first matter to be determined is whether the tenants breached their obligations under section 16 (h) (anti-social behaviour) of the Act and if they did breach their obligations the Tribunal must then consider whether the landlords have failed in their duty to enforce the obligations of the tenants. A Tribunal can direct the landlord to enforce their tenants’ obligations and can also award substantial payments to affected parties for the distress caused by the landlord’s failure to enforce their tenants’ obligations.
Section 16 of the Act sets out a tenant’s obligations; the obligation that is relevant to this dispute is contained at section 16 (h) and that obligation is:
(h) not behave within the dwelling, or in the vicinity of it, in a way that is anti-social or allow other occupiers of, or visitors to, the dwelling to behave within it, or in the vicinity of it, in such a way.
Section 17 of the Act defines anti social behaviour and the relevant part of that section that applies to this dispute is contained at section 17(1) (c) ii under the heading:
‘‘behave in a way that is anti-social’’ means—
(c) engage, persistently, in behaviour that prevents or interferes with the peaceful occupation—
(ii) by any person residing in any other dwelling contained in the property containing the dwelling concerned, of that other dwelling.
On the evidence presented the Tribunal finds that the “noise” behaviour of the tenants was typical of normal day to day activities and that their use of household equipment and electronic equipment is in a similar fashion typical of normal day to day activity and did not contravene their obligations as tenants under the Act. The third party evidence was quite clear that the fault, if there be one, lies not with the occupants of the overhead apartment but with the quality of the flooring and sound insulation in that apartment. The Tribunal observes that the resolution of the dispute is not within the ambit of the PRTB dispute resolution service but is possibly within the cooperation of the apartment owners.
8. Determination:
Tribunal Reference TR0515-001177
In the matter of Maria Hutchinson, John Hutchinson (Landlord) and Phyllis Keeley (Third Party) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
The Appellant Landlords are not in breach of their duty under section 15 of the Act to enforce the obligations of the tenants under section 16 (h) of the Act, in respect of the tenancy of the dwelling at 16 The Elm, Parkview, Belarmine Avenue, Stepaside Dublin 18.

The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 24 September 2015.
Signed:

Aidan Brennan Chairperson
For and on behalf of the Tribunal.

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

 

Kyrs v Dillon

 

 

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001667 / Case Ref No: 0116-23309
Appellant Tenant: Petr Kyrs
Respondent Landlord: Jim Dillon
Address of Rented Dwelling: Rocklow Road, Fethard , Tipperary,
Tribunal: Dervla Quinn (Chairperson)
John Keaney, Finian Matthews
Venue: Pegasus 3, Clarion Hotel, Steamboat Quay,
Limerick
Date & time of Hearing: 20 May 2016 at 11:00
Attendees: Petr Kyrs (Appellant Tenant)
Aidan Leahy (Respondent Landlord’s
Representative)
Yvonne Cassey (Witness)
In Attendance: Stenographer
Interpreter
1. Background:
On 05 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 Mediation
which took place on 14 January 2016. There was no agreement reached at Mediation.
Subsequently the following appeal was received from the Tenant on 14 March 2016. The
grounds of the appeal are Standard and maintenance of dwelling, Invalid Notice of
termination, Breach of landlord obligations and Other. The appeal was approved by the
Board on 15 March 2016
The RTB constituted a Tenancy Tribunal and appointed John Keaney, Dervla Quinn,
Finian Matthews as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Dervla Quinn 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 20 May 2016 the Tribunal convened a hearing at Pegasus 3, Clarion Hotel,
Steamboat Quay, Limerick.
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. She 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 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 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 and she 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:
Tenant’s Evidence.
The Tenant through his interpreter set out the circumstances surrounding the start of the
letting. The Tenant viewed the Dwelling with his family and agreed to rent the dwelling
fully furnished. On moving in a number of items were not in the Dwelling as had been
agreed. There was only a table and 6 chairs and 2 beds. The Tenant said he waited for 2
months before the washing machine arrived. The Tenant expected to be given new
curtains and the opportunity to choose a new couch instead of which an old couch was
delivered. The Tenant said he had to buy his own fridge and cutlery. The Tenant stated
that he had been told by Yvonne that all these items would be provided.
The Tenant then raised the issue of maintenance of the Dwelling. He stated that he had
repeatedly asked the Landlord to carry out repairs. The boiler needed servicing and the
tiles in the shower were falling off. The Tenant stated that he had erected a fence in the
garden to ensure the security of the Dwelling. As the Landlord did not respond to the
Tenant’s request for repairs to be done, the Tenant ended up carrying out the repairs
himself. He then provided the receipts to the Landlord’s agent who deducted them from
the rent.
The Tenant stated that due to all these problems his girlfriend left with their small child
and returned to her home in the Czech republic.
The Tribunal asked whether the Landlord had ever inspected the Dwelling. The Tenant
replied that no, the Landlord had never carried out an inspection and that the Landlord
had never asked to inspect the Dwelling. The Tenant later corrected this evidence and
stated that he had received 3 written requests from the Landlord requesting an inspection
but that he would not agree a date for the inspection to take place until his health was
better. He also stated that the letters addressed to him spelt his name incorrectly. He
confirmed that he had opened the letters. The Tenant stated that he just wanted to be
allowed to stay in the Dwelling as his health meant that he was unable to move.
Landlord’s evidence
The Landlord’s solicitor stated that the issue of rent was not before the Tribunal. The
Landlord’s agents then gave evidence. They confirmed that a number of items were not
in the dwelling at the start of the letting but that everything was in place after about 2
weeks. They challenged the Tenant’s evidence that it took 2 months. The agents had
billed the Landlord for all the items after they had been provided and the bill was dated 4
June 2013. The letting had begun on 25 May 2013.
Ms Casey then commented on the Tenant’s evidence regarding the carrying out of
repairs. She stated that normally the Landlord would inspect a property before arranging
to carry out repairs. She did not agree to the Tenant doing the repairs himself. The
agent in particular did not agree to the Tenant erecting a fence on the property. Ms
Casey stated that the 3 letters seeking to carry out an inspection on the Dwelling were
sent by registered post.
In reply to questioning from the Tribunal, the Landlord’s agent confirmed that in advance
of serving the Notice of Termination they had both informed the Tenant on a number of
occasions that he was in breach of his obligations by failing to allow access for the
purposes of an inspection. They also stated that they had informed the Tenant that if he
failed to remedy the problem within a reasonable time they would serve notice to end the
tenancy.
Closing Statements.
The Tenant stated that he has been a perfect tenant who had not caused any problems
and had always done things in accordance with the law. He is very sorry for what has
happened. He would like to change history as he has lost his family and he misses them.
Due to his health be cannot move. The Tenant confirmed that notwithstanding the 3
names on the lease he is the Tenant in this matter.
The Landlord’s agent stated that they were entitled to carry out inspections on behalf of
the Landlord who lived abroad but that the Tenant had never allowed an inspection to
take place.
6. Matters Agreed Between the Parties
The address of the dwelling is Rockfield Road Fethard Co Tipperary.
Rent at the start of the letting was €575 per month.
A deposit of €600 was paid by the Tenant and is retained by the Landlord.
The letting started on 25 May 2013 and the Tenant is still in occupation.
Both parties confirmed that the issue of rent is not before the Tribunal today.
7. Findings and Reasons:
7.1 Finding. The Tenant is in breach of his obligations pursuant to section 16 (c) and 16
(l) of the Act, to allow the Landlord or any persons acting on his behalf access to the
dwelling for the purposes of carrying out an inspection and not to alter the dwelling
without the written consent of the Landlord.
Reason. The Tenant confirmed to the Tribunal that he had received 3 written notices
from the Landlord’s agent requesting access to carry out an inspection but that he had
not allowed an inspection to take place. The Tenant confirmed to the Tribunal that he
had erected a fence in the garden of the Dwelling, without the Landlord’s permission.
7.2 Finding The Notice of Termination dated 9 December 2015 is valid and in
compliance with the requirements of section 34 for termination of a Part 4 Tenancy.
Reason. The Notice of Termination stated 2 grounds, namely failure to allow an
inspection and altering the external arrangements of the Dwelling. The Tenant in his
evidence to the Tribunal confirmed that both of these breach of obligations had taken
place. The Tribunal accepts the sworn evidence of the Landlord’s agents that they had
on a number of occasions informed the Tenant that he was in breach of his obligations
and that failure to remedy the breach would result in the Landlord serving notice to
terminate the letting.
8. Determination:
Tribunal Reference TR0316-001667
In the matter of Petr Kyrs (Tenant) and Jim Dillon (Landlord) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
1. The Notice of Termination dated the 9th December 2015 served by the Respondent
Landlord on the Applicant Tenant in respect of the tenancy of the dwelling at Rocklow
Road Fethard Co Tipperary is valid.
2.The Applicant Tenant and any other occupant of the dwelling shall vacate and give
up possession of the above dwelling within 35 days of the date of issue of this Order.
3.The Aplicant Tenant shall also pay any further rent outstanding from 20th May 2016,
at the rate of €575 per month or proportionate part thereof at the rate of €18.90 per
day, unless lawfully varied, and any other charges as set out in the terms of the
tenancy agreement for each month or part thereof, until such time as he vacates the
above dwelling.
4. The Respondent Landlord shall refund the entire of the security deposit of €600 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.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
22 May 2016.
Signed:
Dervla Quinn Chairperson
For and on behalf of the Tribunal.

 

Luiten v Sherlock

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1214-000975 / Case Ref No: 0514-12446
Appellant Landlord: Gerardus Luiten
Respondent Tenant: Michael Sherlock, Rachel Sherlock
Address of Rented Dwelling: 61 Ennel Drive, Artane , Dublin 5.
Tribunal: Gene Feighery (Chairperson)
John Tiernan, Aidan Brennan
Venue: Tribunal Room, PRTB, O’Connell Bridge House,
D’Olier Street, Dublin 2
Date & time of Hearing: 11 February 2015 at 10:30
Attendees: Gerardus Luiten, First Named Appellant Landlord
Martina Luiten, Second Named Appellant Landlord
Christine Cullen, Agent for the Appellant Landlord
Robert Forbes, Agent for the Appellant Landlord
Michael Sherlock, Respondent Tenant
Rachel Sherlock, Respondent Tenant
In Attendance: Gwen Malone Stenographers
1. Background:
On 30th May 2014 the Tenants, Michael & Rachel Sherlock 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 that took place on 29 October 2014. The
Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €611.31 to the Applicant Tenant,
within 7 days of the date of issue of the Order, being the balance of the unjustifiably
retained security deposit of €1100.00, €462.69 having been previously refunded to
the Applicant Tenant, and having deducted the sum of €26 to replace missing
hanging baskets, in respect of the tenancy of the dwelling at 61 Ennel Drive, Artane,
Dublin 5.
An appeal was received from the Landlord, Gerardus Luiten on 15 December 2014. The
grounds of the appeal related to the assertion that the Adjudicator allegedly failed to fully
appreciate the Landlord’s claim, wherein he used high quality photography and receipts in
support of his claim to justifiably the retention of a portion of the Tenant’s security deposit
payment.
The Board of the PRTB on 09/01/2015 approved the appeal application.
The PRTB constituted a Tenancy Tribunal and appointed Gene Feighery, Aidan Brennan
and John Tiernan 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 11 February @ 10.30 am the Tribunal
convened a hearing at 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:
N/A
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 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 persons who appealed (the Appellant Landlords 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 his
case, and that there would be an opportunity for cross-examination by the Appellant
Landlords. The Chairperson also said that members of the Tribunal might ask questions
of both parties from time to time. The Chairperson explained that both of the attending
parties would be invited to make a final submission.
The Chairperson told the attending parties that all evidence would be taken on oath or
affirmation and be recorded by the official stenographer present and reminded them 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 and/or up to 6 months imprisonment. (Parties
giving evidence were sworn in.)
Before the parties began giving evidence the Tribunal explained that the hearing would
be confined to matters that fell within the remit of the PRTB as prescribed in the
Residential Tenancies Act 2014 and that allegations between the parties of a defamatory
nature would not be dealt with by the Tribunal.
The Chairperson told the attending 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:
Evidence of Martina Luiten:
In her testimony to the Tribunal the Second Named Appellant Landlord stated that the
dwelling was built in 1962. She said that she and her family had lived there for a period of
11 years during which time they had maintained the dwelling to a high standard and had
carried out improvements, including installation of double glazing. She said that she was
house proud and that she had cleaned the house until it shone in advance of the
commencement of the tenancy. She supplied a number of new items in the dwelling at
the commencement of the tenancy, e.g. crockery, some appliances and three new
mattresses. Extensive photographic evidence of the new items was adduced in evidence
to support her case. She conceded that she did not expect to have the house returned in
perfect condition at the end of the tenancy, however she did expect it to be clean.
She said that before the tenancy was due to terminate on 23 May 2014 a joint inspection
of the dwelling between the Agent and the Respondent Tenant was carried out on 22 May
2014. During this inspection the Agent had identified a number of issues that needed to
be addressed and details of the Agent’s report were sent to the Respondent Tenants by
e-mail on 22 May 2014.
The issues raised therein included, inter alia, that the house needed to be dusted and
vacuumed througout, cobwebs needed to removed and windows, wardrobes, kitchen
presses, appliances, worktops, floors, including the garage floor needed to be cleaned.
The report further stated that the garden grass needed to be cut and that the corrugated
plastic roof to the rear of the dwelling and all curtains in the dwelling also needed to be
cleaned. She stated that when the Tenants vacated the dwelling it was generally dirty.
There were cowebs, mould on the windows, dirt, debris, broken toys, a broken shelf in the
fridge, baby-wipes and baby clothes remainig in the dwelling. She said it was necessary
to replace a number of items within the dwelling, including the three new mattresses
purchased at the commencement of the tenancy due to an unacceptable level of staining
on them.
She told the Tribunal that it was necessary to engage professional cleaners to bring the
dwelling up to a suitable standard for re-letting and that a new tenancy was due to
commence on the day following vacation by the Respondent Tenants. She said that the
Tenants were aware from the special conditions of the lease drawn up between the
parties that deductions would be made from their security deposit in circumstances where
there was damage to the dwelling in excess of normal wear and tear. She stated that she
was jutified in retaining a portion of the Respondent Tenants’ security deposit and that
she supplied very detailed and specific documentary proof in support of the said
deductions.
On a point of clarification, the Second Named Appellant Landlord stated that the
Respondent Tenants were specifically told that they were not expected to put themseves
in any danger by climbing onto a roof in order to clean it.
In relation to repair works carried out to the external plasterwork at the side gable of the
dwelling, the Second Named Appellant Landlord stated that the Tenants contacted her in
February 2014 to report external storm damage. She said that she explained to them the
nature and scale of the remedial works that were required to repair the damage. She said
that it was agreed between the parties that the work would go ahead however it took a
long time for the insurance claim to be settled and that the works were delayed and did
not commence until 19th May 2014 being the week just prior to vacation of the tenancy by
the Respondent Tenants. She said that it is only retrospectively that the Respondent
Tenants have raised health and safety issues arising from the works. She said that if
these issues had been raised at the time the works were going on that she could and
would have addressed them.
She stated that she never made an issue of the premature termination of the tenancy by
the Respondent Tenants and that there had been a lot of goodwill shown by them in
relation to the tenancy. She was not including the premature termination as part of her
appeal.
In summary she said that they believed the deductions from the deposit were justified on
the basis of damage in excess of normal wear and tear to the dwelling and that despite
the Tenants’ claim that they cleaned the dwelling, their evidence showed a lot of dirt. She
said that they were required to employ professional cleaners and that they had backed up
all of their deductions with evidence.
Evidence of Gerardus Luiten:
In his testimony to the Tribunal the First Named Appellant Landlord stated that there was
evidence of a hole pierced in the dishwasher which had caused it to malfunction. The
malfunction was reported to him by the ensuing new tenants in the dwelling subsequent
to the Respondent Tenants’ tenancy. He further stated that the microwave required
professional cleaning but that it had rusted as a result of the chemicals used by the
professional cleaners they themselves had engaged to clean it and it had to be replaced.
He said that only the bottom oven was cleaned by the Respondent Tenant and that the
top oven was not. He said that at no stage during the 11 years living in the dwelling did he
experience problems with the plumbng or drainage systems. However he said that during
the tenancy it was necessary for him to repair a drain which was blocked with hair,
engage a plumber to unblock a toilet and at the end of the tenancy to use a plumbing rod
to unblock drains.
Evidence of Christine Cullen, Agent for the Appellant Landlord:
The Agent stated that she had carried out a preliminary inspection of the dwelling on
behalf of the Appellant Landlords on 22 May 2014 and that she intended to carry out a
further joint inspection on the termination date, i.e. 23rd May 2014. During the preliminary
inspection she said that she identified a considerable number of issues that needed to be
addressed by the Respondent Tenants in order to return the dwelling to a condition
suitable for re-letting. She said when she called to the dwelling she was uncomfortable
being there because she found the Respondent Tenants’ manner towards her to be
hostile and she was told by the first named Respondent Tenant that he was not ready to
leave because he had not completed the required cleaning works.
She stated that the preliminary report prepared by her, a copy of which was sent to the
Appellant Landlords and Respondent Tenants, constituted a list of recommendations and
that she did not presume to tell the Tenant how to carry out cleaning. She said the items
included in the notes section of the the preliminary report stated that windows, roof and
curtains needed to be cleaned but that this was intended as information for the Landlord,
and not the Tenant. She said that she had intended to carry out a further inspection
following the pre-inspection and she conceded that the preliminary report prepared by her
did not state, or make it clear that the inspection on 22nd May 2014 was a pre-inspection
and that the recommendations to clean the roof, curtains and windows were intended for
the Landlord.
Respondent Tenant’s Evidence:
Evidence of Michael Sherlock:
In his testimony to the Tribunal the Respondent Tenant stated that he was an ideal
tenant. He said that had passed a 6 month home inspection of the dwelling by the Agent
acting on behalf of the Appellant Landlords without issue and that he had always paid his
rent and utility bills on time. He said he had a good relationship with the Appellant
Landlords up until the time he sought to prematurely terminate the tenancy of the dwelling
in circumstances where he had purchased his own property. He said that commencing
from the time of this request he was met with resistence from the Appellant Landlord’s
Agents and permission to assign the tenancy was withheld. He said he then issued a
valid notice of termination on 18 April 2014, in full compliance with Section 186 of the Act
wherein he stated that he would be vacating the dwelling on Friday 23 May 2014. He said
he rejected persistent attempts to levy costs on him by the Agent arising from the
premature termination of the tenancy however he was happy to facilitate viewings
organised by the Landlord to prospective new tenants for the dwelling.
In relation to the alleged damage in excess of normal wear and tear to the dwelling, the
Respondent Tenant stated that the Appellant Landlords’ Agent carried out an inspection
of the dwelling the day before they were due to vacate following which an excessive
cleaning list was issued. The list included, inter alia, that he was required to clean the roof
to the rear of the dwelling. He said that the excessive list raised his suspicions that there
would be a problem having his security deposit returned, so he took a day off work and
set about cleaning the dwelling to a high standard and he took extensive photographic
and video evidence of the dwelling following this cleaning which was adduced in
evidence. He said he travelled to County Armagh to borrow a ladder from his father. Both
his father and himself then returned to the dwelling to carry out the required cleaning
works. He said that he cleaned the roof despite the fact that he was not legally required to
do so. He said that the Agent carried out a final inspection on the day he vacated the
dwelling and told him he would get his deposit back.
The Respondent Tenant said when he subsequently asked for the return of his security
deposit he was issued with a four page report outlining significant deductions from the
deposit on the basis that there was extensive damage to the dwelling in excess of normal
wear and tear. He said that the justification for the deposit retention by the Appellant
Landlord related to, inter alia, alleged damage to mattresses, curtain cleaning, plumbing
works and the fact that professional cleaning of the dwelling was required to bring it to an
acceptable standard. He rejected this report. However he conceded that a charge for
missing hanging flower baskets was justified because his wife had disposed of the said
baskets without permission.
In relation to the staining on the mattresses, he said that he and his wife were offended
by the assertion that the mattresses had to be replaced following their tenancy. He said
that mattress covers were purchased by them for all three new mattresses and that any
marks allegedly caused by their two young children, who were in the process of being
potty trained, were very minor, that the damage constituted normal wear and tear and
certainly did not justify the cost of purchasing replacements.
He said that following his query to the Agent about the health & safety implications of
cleaning the roof, the response telling him that the Appellant Landlords had agreed to
clean it themselves came too late because he had already carried out the works.
Regarding the plumbing, the Respondent Tenant said that during the tenancy the drain
was blocked and he was billed by the Appellant Landlords with what he considered to be
a ridicolusly high charge to have it unblocked. Following this, he purchased a hair trap
and said if the drains blocked again he would remedy the problem himself rather than pay
another very expensive charge. He said that when he vacated the dwelling the toilet
flushed properly and the shower drained perfectly. However he said that a reported leak
in the shower was not repaired despite the fact that he had told the Appellant Landlords
that he was welcome to come and repair it at any stage. He said that the shower was
dripping when he vacated the dwelling. He said that a photograph adduced in evidence
by the Appellant Landlord showing a drain blocked with hair and a crayon was taken after
his tenancy terminated and that the Appellant Landlord himself had four young children
who equally could have been been responsible for this alleged blockage.
The Respondent Tenant said that in February 2014 he reported to the Appellant Landlord
that damage had occurred to the side gable of the dwelling where lumps of plaster had
fallen away. He said he agreed that remedial repairs could be carried out to the damaged
patch during the period of his tenancy, however work did not commence until Monday
19th May 2014. When the work eventually started, it was far more extensive than he had
anticipated or to what he had agreed to with the Appellant Landlord. He said scaffolding
was erected over the front entrance of the dwelling and to the gable where the plaster
was damaged. He said that the works were very dirty and disruptive and caused
extensive dust and rubble. He said that there were health and safety concerns to his
children arising from this work and where the construction employees had to go through
the garage at the side of the dwelling to access the front and back of the house. He said
the entire works wrapped up on 23rd May, 2014, the day they vacated and he found it
unacceptable to be criticised for not having cut the garden grass which contained
construction debris at the time. Nevertheless he said that they did clean dirt associated
with the construction works.
In relation to damage to a shelf in the fridge resulting in a claimed charged of €87.75 by
the Appellant Landlord, he said that a crack existed in this shelf at the beginning of the
tenancy and had increased in size during the period of the tenancy. He conceded that he
did not report this to the Appellant Landlord.
In relation to the alleged hole in the dishwasher, he rejected this evidence on the basis
that the dishwasher was fully functioning when he left the dwelling and that the reported
malfunction arose from and during a subsequent tenancy.
He said that although the Appellant Landlords are claiming that there is no issue with the
premature termination of the tenancy, he did experience resistence at the time and an
attempt was made to level letting fees against him for so doing.
When questioned by the Appellant Landlord about what evidence the Respondent Tenant
had to support his claim that the Appellant Landlords had sought letting fees from him
arising from his premature termination of the tenancy, he said he was persistently told he
would be charged letting fees by the Agent when in April he made his initial contact with
them asking about the implications and procedure involved in terminating a lease
prematurely. He said that his e-mail of 18 April 2014 rejecting payment of these fees is
written evidence of his assertion.
6. Matters Agreed Between the Parties
A fixed term 12 month tenancy commenced on 1 September 2013.
The tenancy was terminated prematurely by the Tenant on 23 May 2014.
The monthly rental payment was €1,100 per calendar month.
The security deposit paid at the commencement of tenancy amounted to €1,100.
The Landlord has returned a portion of the security deposit in the sum of €462.69 to the
Tenant.
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 therefor
based on the balance of probabilities are set out hereunder.
7.1 Finding:
The Appellant Landlords are in breach of their obligations under Section 12 (1)(d) of the
Act arising from their failure to return promptly to the Respondent Tenants the deposit
paid when the lease was entered into less any amounts lawfully withheld. In assessing
the amount of the deposit to be returned the Tribunal has had regard to Section 16 (f) of
the Act which specifies that there shall be disregarded, in determining whether or not
there has been a deterioration in the dwelling in excess of normal wear and tear at a
particular time, the duration of the tenancy and the extent of occupation of the dwelling
and the fact that the Landlord must have reasonably foreseen a deterioration would occur
during the tenancy and other relevant matters.
Reason:
The Appellant Landlords stated that the dwelling was in pristine condition at the
commencement of the tenancy and that they had lived in the dwelling prior to the
tenancy. The second named Appellant Landlord said that she was very house proud.
The tenancy was the subject of a family occupation, including two parents and two young
children. Taking into account the occupation and duration of the tenancy, and the
extensive photographic evidence taken by both parties, it is clear to the Tribunal that
there was no damage caused to the dwelling in excess of normal wear and tear, with the
exception of the disposal of two hanging flower baskets and to a shelf in the fridge.
It is clear to the Tribunal that a major clean up operation was carried out by the
Respondent Tenant and that the dwelling was returned to the Appellant Landlords in an
acceptable level of cleanliness, however the Tribunal finds that the Appellant Landlords
expected the Respondent Tenant to comply with excessive standards in relation to the
level of cleaning and maintenance required for the dwelling.
The Appellant Landlords had new replacement tenants who were due to take up
occupation of the dwelling the day following which the Respondent Tenants had vacated,
and the Tribunal finds that the Appellant Landlords expected a standard of compliance in
relation to cleaning and maintenance far in excess of that which could be considered to
constitute normal wear and tear. A Landlord cannot impose unreasonable requirements
on a Tenant in order that they are in a position to offer the dwelling to new tenants in
pristine condition.
The Tribunal further finds that the Appellant Landlord’s were particularly unjustified in
their required standards of maintenance and cleanliness in circumstances where there
was major construction taking place at the dwelling which interfered with the Tenant’s
ability to comply with such required standards.
The Tribunal does not however, find that the Appellant Landlords are in breach of their
obligations to allow the Respondent Tenants exclusive and peaceful enjoyment of the
dwelling arising from the remedial construction works carried out to the dwelling during
the tenancy. This is due to the fact that the works were mutually agreed between the
parties, however the level of works greatly exceeded those described to the Respondent
Tenant and a request to clean the roof of the dwelling and carry out gardening works
when there was scaffolding and construction debris in the garden is excessive.
Additionally the dust and disruption arising from the construction works contributed to the
level of dust in the dwelling to the extent that it impacted on the Respondent Tenant’s
ability to maintain the dwelling to the standards required by the Appellant Landlord.
In relation to the purchase by the Appellant Landlord of replacement mattresses and a
microwave damaged as a result of the use of corrosive cleaning chemicals, the Tribunal
finds that neither claim by the Landlord is justified. The photographic evidence of the
mattresses produced by both parties did not give rise to a finding of damage in excess of
normal wear and tear and the Respondent Tenant cannot be held responsible for damage
to the microwave oven arising from the use of corrosive cleaning equipment carried out
by a professional cleaning company engaged by the Appellant Landlords.
The Appellant Landlords later claim for replacement dishwasher is not upheld. The claim
that the dishwasher did not function arose following complaints in a subsequent tenancy
to that of the Respondent Tenant. On the balance or probability the Tribunal is not
persuaded by photographic evidence purporting to show the damage to the dishwasher
following the Respondent Tenant’s tenancy.
7.2 Finding:
The Tribunal finds that the Respondent Tenant’s are in breach of their obligations under
Section 16 (d) to notify the Landlord or his or her Agent of any defect that arises in the
dwelling and that requires to be repaired and Section 16(f) not do to any act that would
cause a deterioration in the condition the dwelling was in at the commencement of the
tenancy.
Reason:
The Respondent Tenant failed to inform the Appellant Landlord of a crack in a shelf in the
fridge, and this crack increased during the period of the tenancy. The replacement cost
for this shelf amounts to €87.75. In addition, the Respondent Tenant disposed of
flowering hanging baskets belonging to the Appellant Landlords amounting to €26.00 in
value without permission. Total replacement cost €113.75.
8. Determination:
Tribunal Reference TR1214-000975
In the matter of Gerardus Luiten (Landlord) and Michael Sherlock, Rachel Sherlock
(Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The Landlords shall pay the total sum of €523.56 to the Tenants within 7 days of the
date of the issue of the Order, being the balance of the unjustifiably retained portion of
€637.31 of the original security deposit of €1,100, the sum of €462.69 having been
previously refunded to the Tenant, and having deducted the sum of €113.75 for
damage in excess of normal wear and tear to the dwelling at 61 Ennel Drive, Artane,
Dublin 5.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 03/03/2015.
Signed:
Gene Feighery Chairperson
For and on behalf of the Tribunal.

Lynam v de Jong

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1214-000961 / Case Ref No: 0514-12363
Appellant Landlord: Eugene Lynam
Respondent Tenant: Sander de Jong
Address of Rented Dwelling: Apt. 9 Stewart Hall, Ryders Row, Dublin 1.
Tribunal: Finian Matthews, Gene Feighery (Chairperson)
Aidan Brennan
Venue: Tribunal Room, PRTB, Floor 2, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 07 April 2015 at 2:30
Attendees:
Eugene Lynam, Appellant, Landlord
Mary Lynam, Landlord
In Attendance:
Gwen Malone Stenographers
1. Background:
On 27/05/2014 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 Paper Based Adjudication which took place on 25/07/2014. The Adjudicator determined that;
The Respondent Landlord shall pay the total sum of €510.00 to the Applicant Tenant, within 28 days of the date of issue of the Order, being the unjustifiably retained portion of the security deposit of €600.00, having deducted the sum of €90.00 for breach of the Applicant Tenant’s obligations under the Residential Tenancies Act 2004 in respect of the tenancy of the dwelling at Apt 9, Stewart Hall, Ryder’s Row, Dublin 1.
Subsequently the Landlord applied to appeal which said application was received on 05/10/2014. The Appeal was approved by the Board of the PRTB on 06/02/2015.
The PRTB constituted a Tenancy Tribunal and appointed Finian Matthews, Gene Feighery, Aidan Brennan 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”).
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 07/04/2015 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:
None
4. Procedure:
Opening the Tribunal the Chairperson stated that it had been established to hear an appeal by the Appellant Landlord against a determination made following an adjudication held on 9 July, 2014 in the case of a dispute between the Landlord and the Respondent Tenant in respect of a tenancy at Apartment 9, Stewart Hall, Ryder’s Row, Dublin 1. He introduced the members of the Tribunal to the parties.
He asked the attending Party to identify themselves and to state the capacity in which they were attending the Tribunal hearing. He confirmed with the attending Party that they had received the relevant papers from the PRTB in relation to the case and that they had received and understood the PRTB document entitled “Tribunal Procedures”. The attending Party 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 attending Party 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 attending Party 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 to present their case. He said that in his absence the Respondent Tenant had requested that the document he had submitted in the case be taken account of by the Tribunal. The Chairperson said that the Appellant Landlords were free to comment as they wished on the tenant’s written submissions. He said that members of the Tribunal would ask questions of the attending Party from time to time.
He also said that at the end of the hearing the Appellant Landlords would be given the opportunity make a final submission should they so wish.
The Chairperson reminded the attending Party 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 then sworn in.
5. Submissions of the Parties:
Appellant Landlords Case:
The Appellant Landlords stated that they were joint owners of the dwelling and were joint landlords in respect of the tenancy. They referred to the Respondent Tenant’s claim that they owe him €525 or €600 and said that this cannot be the case because no such amount was ever paid to them by the Respondent Tenant.
The first-named Appellant Landlord said that in March, 2014 he got a call from one of the two original tenants in the dwelling, Gabi Gogol, the other tenant being Adill Hosany. He said that Gabi Gogol told him that Adill Hosany had left and was unlikely to be returning to the dwelling. He added that Ms.Gogol told him that she had arranged for the Respondent Tenant, Sander de Jong, to take Mr. Hosany’s place.
The first-named Appellant Landlord said he went to Dublin a few days after the phone call to find that Sander de Jong had already been in occupation of the dwelling for a number of days. Mr. de Jong told him that he was the replacement tenant, but he did not take any further action at that stage, because he needed time to think about the situation, check out Mr. de Jong’s references, and be sure that Mr. Hosany was gone for good.
The first-named Appellant Landlord said that on the following weekend he got a call from the management company for the building in which the dwelling is located to state that there had been a major disturbance causing disruption to other residents arising from a party at the dwelling attended by 25 to 30 people over a Saturday night and Sunday morning. He referred to a subsequent letter to the tenants from the management company which set out details of what had occurred, said that some of this had been captured on CCTV and warned the tenants that the level of anti-social behaviour that had occurred might require that they be requested to leave or be evicted. An invoice for clean-up costs in the amount of €180 related to common areas outside the dwelling was also sent to the tenants.
The first-named Appellant Landlord said that he subsequently spoke to the Respondent Tenant who told him that he had not organised the party, had been in bed during the party and distanced himself from what had occurred. The landlord said that, on the advice of the management company, he made a verbal request to both tenants to leave and at their request he gave them a week or 10 days to do so. He said that they started to look for alternative accommodation and left around the end of March, 2014.
The first-named Appellant Landlord said that after the tenants had left, the Respondent Tenant went to the Gardai about his deposit. He said that he explained to the Garda who rang him that the Respondent Tenant had given his deposit to another tenant who had left and that he, the Respondent Tenant, should ask the other tenant for the deposit if he wanted it back. He added that the Gardai did not pursue the matter any further after that. He also said that the whole situation that had arisen caused him a great deal of stress.
The first-named Appellant Landlord also said that one of the tenants, Gabi Gogol, had a cat, contrary to the terms of the lease, and that the cat had caused considerable damage by scratching to two sofas in the dwelling. He said that the sofas were about 4 years old and referred to an invoice which showed that the two sofas had cost €800 to purchase. He asserted that the two sofas were in good condition at the commencement of the tenancy and that the damage to them was beyond normal wear and tear. He said that the sofas were not replaced and remained in the dwelling which is currently rented.
In a final submission the first-named Appellant Landlord said that he cannot give money to someone who had never paid any money to him. He added that the reason he had appealed against the Adjudicator’s determination was because he had been ordered to pay €600 but had never received such an amount from any tenant.
Respondent Tenants case:
The Respondent Tenant advised the PRTB that he was not in a position to attend the Tribunal hearing, but asked that his written submissions in relation to the return of the deposit he paid to a departing tenant be taken into consideration by the Tribunal.
The Chair thanked the Appellant Landlords for attending 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 attending party to make 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 1 June, 2013
• The tenancy terminated at the end of March, 2014
• The rent was €525 per month
• There were no rent arrears
• The two original tenants in the dwelling, Gabi Gogol and Addill Hosany, paid a deposit of €1050
• The deposit has been retained by the Appellant Landlord.
• One of the original tenants, Addill Hosany, moved out of the dwelling in early March, 2014
• The Respondent Tenant replaced the tenant who moved out.
The Appellant Landlords in attendance agreed with the foregoing matters.
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence presented to it, the Tribunal’s findings and reasons therefor are set out hereunder.
7.1 Finding:
The Appellant Tenant is not in breach of his obligations under section 16(f) of the Act.
Reasons:
Under sub-section (f) of section 16 of the Act, a tenant must not do anything that would cause deterioration in the condition a dwelling was in at the commencement of a tenancy dis-regarding any deterioration owing to normal wear and tear, having regard to the length of the tenancy and the extent of the occupation of the dwelling.
In relation to the alleged damage to two sofas in the dwelling no photographic or any other evidence was adduced by the landlords to show the extent of the damage, if any, to the sofas. In the absence of any such evidence the Tribunal cannot make a finding that the Respondent Tenant was responsible for any damage to the sofas. The Tribunal further notes that the sofas allegedly damaged were not replaced and remain in use during a subsequent tenancy over 12 months after the Respondent Tenant’s tenancy terminated. This further calls into question the extent to which the sofas were in fact damaged.
In relation to the damage and clean-up required as a result of the party in the dwelling the Tribunal notes that the alleged damage occurred in common areas outside the dwelling which were not part of the dwelling as such. Under the terms of the Act a deduction may only be made from a deposit for damage resulting from deterioration in the condition a dwelling was in at the commencement of a tenancy. Common areas in an apartment block do not constitute part of a dwelling within the block.
The Tribunal finds accordingly that the Respondent Tenant did not cause deterioration in the condition of the dwelling at the commencement of the tenancy beyond normal wear and tear.
7.2. Finding:
The Appellant Tenant did not engage in anti-social behaviour contrary to the provisions of section 16(h) of the Act
Reasons:
Under section 16(h) of the Act a tenant must not behave within a dwelling, or in the vicinity of it, in a way that is anti-social or allow other occupiers of, or visitors to the dwelling to behave in such a way. The fact that the Respondent Tenant may not have been at the party in question in this case, or may have been asleep during the party, does not absolve him from his obligation not to allow other occupiers or visitors to the dwelling to engage in anti-social behaviour.
However, anti-social behaviour of the nature complained of in this case is defined in the Act as engaging, persistently, in behaviour that prevents or interferes with the peaceful occupation of the dwelling by others residing there, or the peaceful occupation of other dwellings in the building, or the peaceful occupation of neighbouring dwellings. In this case the complaints of anti-social behaviour related to one party only, and on one occasion, which cannot in itself be regarded as engaging persistently in such behaviour. Furthermore for a finding of engaging in anti-social behaviour to be made against a tenant it would have to be demonstrated through evidence that the alleged anti-social behaviour prevented or interfered with the peaceful occupation of other residents of the dwelling, or residents of other dwellings in the building or in the neighbourhood. In this case no evidence, other than a statement by the management company that other residents were disrupted, was provided to substantiate the assertion that the peaceful occupation of any other resident in the dwelling, in other dwellings in the building or in any dwelling in the neighbourhood was prevented or interfered with. There is no statutory or evidential basis accordingly upon which the Tribunal could make a finding that the Respondent Tenant engaged in anti-social behaviour on the occasion in question.
7.3 Finding:
The landlord is in breach of his obligations under section 12 (1) (d) of the Act and clause 4.7 of the lease in not returning or repaying promptly the portion of the deposit in the amount of €525 paid by the Respondent Tenant to a previous tenant whom the Respondent Tenant replaced. The sum of €525 is to be paid by the Appellant Landlords to the Respondent Tenant.
Reasons:
Under clause 2.2 of the lease governing the tenancy the “Tenant” is defined as including the successors in title. The Tribunal is satisfied that Sander de Jong replaced Adill Hosany as a Tenant during the currency of the lease, was accepted by the Appellant Landlord as a tenant and thereby became a successor in title, subject to the obligations and entitled to the benefits of the lease, including the return, subject to other terms of the lease and the Act, of the share of the deposit paid by Adill Hosany. The Tribunal is further satisfied on the evidence that Sander de Jong paid that amount to Adill Hosany on taking over the latter’s obligations under the Lease.
Section 12 (1) d of the Act requires the return or repayment of any repayable amount of deposit paid by the tenant to the landlord. However section 18 (2) of the Act provides that a lease may confer more favourable terms than those provided by section 12 of the Act. In this instance Sander de Jong did not pay his share of the deposit to the landlord; he paid it to the departing tenant, Adill Hosany, by way of reimbursement, but the lease agreement confers more favourable terms in the matter of the deposit and Sander de Jong is entitled to so benefit. As the tenant who departed, Adill Hosany, is not at any loss he is not entitled to any portion of the deposit.
On the basis that this was the only claim before it, the Tribunal has confined its determination in this case to the issue of whether the portion of the deposit paid by Sander de Jong to a departing tenant, Adill Hosany, is repayable. The Tribunal’s determination in that regard is made without prejudice to any other claim by any other party to the tenancy.
8. Determination:
Tribunal Reference TR1214-000961
In the matter of Eugene Lynam (Landlord) and Sander de Jong (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 €525 to the Respondent Tenant, within 28 days of the date of issue of the Order, being the unjustifiably retained security deposit of €525 paid by the Respondent Tenant to a tenant he replaced, Adill Hosany, in respect of the tenancy of the dwelling at Apt 9, Stewart Hall, Ryder’s Row, Dublin 1.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 17/04/2015.
Signed:
Finian Matthews, Chairperson
For and on behalf of the Tribunal.

McEneaney v Earley

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001731 / Case Ref No: 0216-24242
Appellant Tenant: Bernard McEneaney, Kristin Webster
Respondent Landlord: Martin Earley
Address of Rented Dwelling: 10 Pairc Cluain, Mulgannon , Wexford,
Tribunal: Ciara Doyle (Chairperson)
Anne Leech, Brian Regan
Venue: Conference Room, The Department of the
Environment, Newtown Road, Wexford
Date & time of Hearing: 13 June 2016 at 11:00
Attendees: Martin Earley (Respondent Landlord)
Bernard McEneaney (Appellant Tenant)
KristinWebster (Appellant Tenant)
John Earley (Witness for the Landlord)
In Attendance: DTI Sternographers
1. Background:
On 16 February 2016 the Landlord made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an
Adjudication which took place on 15 March 2016. The Adjudicator determined that:
1. The Respondent Tenant shall pay the total sum of €1,132.15 to the Applicant
Landlord in two consecutive monthly payments of €400 on the 28th day of each
month, followed by one payment of €332.15 on the 28th day of the immediately
succeeding month, commencing on the 28th day of the month immediately following
the date of issue of this Order, being rent arrears of €540, and damages of €1,267.15
because of damage to the Dwelling in excess of ordinary wear and tear, having
deducted the justifiably retained security deposit of €675 in respect of the Dwelling at
10 Pairc Cluain, Mulgannon, Wexford.
2. The enforcement for this Order for such payment of €1,132.15 will be deferred and
the total sum owing reduced by the cumulative sum paid in the monthly instalments
made by the Respondent Tenants to the Applicant Landlord on each due date until
such time as the total sum of €1,132.15 has been paid in full.
3. 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 of any such monthly payment shall immediately become due and owing to the
Applicant Landlord.
Subsequently the following appeal was received from the Tenant on 18 April 2016. The
grounds of the appeal are Deposit retention, Standard and maintenance of dwelling,
Damage in excess of normal wear and tear and Rent arrears. The appeal was approved
by the Board on 22 April 2016.
The RTB constituted a Tenancy Tribunal and appointed Anne Leech, Ciara Doyle, Brian
Regan as Tribunal members pursuant to Section 102 and 103 of the Act and appointed
Ciara Doyle to be the chairperson of the Tribunal (“the Chairperson”).
On 20 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 13 June 2016 the Tribunal convened a hearing at Conference Room, The Department
of the Environment, Newtown Road, Wexford.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
Log of Rental Payments received from the 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 persons who appealed (the Appellants) would be invited to present their case first;
that there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present her case, and that there would be an
opportunity for cross-examination by the Appellants.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath and be recorded by
the official stenographer present and he reminded the Parties that knowingly providing
false or misleading statements or information to the Tribunal was an offence punishable
by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenant said she had first learned of the dwelling from her friend who had
seen a notice in a local supermarket. She contacted the Landlord and arranged to meet
him at the dwelling. The Landlord advised her that the rent was €130 per week however
as she had a dog the parties agreed that the Tenant would pay €135 per week to include
a provision of €5 per week for any damage caused by the dog. The Tenant said this
amounted to an extra €580 for the duration of the tenancy to cover damage done by the
dog. The Landlord consented to them having a dog in the dwelling. Initially it was just
the two Tenants and their dog however they were later joined by two children and a
puppy.
Rent arrears:
The Tenants admitted at the outset of the hearing that they had reviewed their bank
statements and they were in arrears of rent in the sum of €270, being 2 weeks rent. They
advised they had used quick lodge for the first 3 weeks rental payments and thereafter
had paid the rent to the Landlord’s bank account by electronic payment. In total they said
there were 116 payments due to the Landlord for the duration of the tenancy, 111
payments appeared on their bank statements and there were 3 quick lodge payments
made at the beginning of the tenancy amounting to 114 rental payments.
In respect of Landlord’s claim for damages caused to the property in excess of fair wear
and tear they dealt with each item as follows:
Sofa
The Tenants contended that the sofa was 3 years old when they moved in and was also
scratched. Any damage carried out during the duration of the tenancy was fair wear and
tear only. They referred the tribunal to pictures on the case file in relation to the condition
of the sofa when they left the property, to indicate it was in good condition and nothing
like the condition of the sofa as submitted in the Landlord’s photographs.
Microwave
The Tenants admitted the microwave had broken during the course of the tenancy. They
said they hadn’t bothered contacting the Landlord about it as they intended to deal with
matters themselves. They replaced it before they left the property. They paid
approximately €35 for the microwave and left the replacement microwave in the dwelling
when they vacated. They said the Landlord had subsequently called to their new house
after they vacated with the said microwave and left it at their new dwelling accusing them
of leaving rubbish behind. They said when they left the dwelling the microwave had been
working.
Damage to the staircase, spindles and window board
The Tenants admitted that they had a puppy in the dwelling and that damage had been
caused to the window board by the puppy chewing it. They advised that any such
damage could be rectified by wood filler, costing no more than €5 and submitted that they
would have attempted to remedy the damage had they not had to leave the dwelling in
such a hurry. They disputed wholly any damage to the stairs or spindles in the dwelling.
They did say that the spindles were loose but this was not caused by any damage by
them, their children or their dogs.
Fridge handle
The Tenants said that the fridge handle was cracked when they moved in and
subsequently broke off.
Door Locks
The Tenants accepted they had caused damage to some door locks in the dwelling.
Oil
The Tenants admitted that an agreement had been reached between the parties that they
would either fill the oil to 11 inches or pay €250 to the Landlord at the end of the tenancy.
They said they had left the oil tank empty when they left the dwelling and therefore
accepted that money may be due to in this regard. However they wholly disputed that
they interfered with the cap on the oil tank causing damage by water ingress into the tank.
Garden
The Tenants admitted that there was a broken tree in the garden however they said that
this was caused by bad weather conditions over which they had no control. They
admitted they had chopped the tree after it had broken to cut it down. They described the
garden as a sloping garden which got very boggy during the winter months and that any
damage to the garden was due to the said conditions rather than damage caused by
them. They said the Landlord himself had caused damage to the garden when moving
their items from his shed.
Wooden bed
The Tenant said that when they moved in to the dwelling there was a wooden bed
upstairs which they took apart as they had their own bed. They put the memory foam
mattress attached against the wall and covered it with a sheet and used their own
mattress and bed. They put the wooden bed in the attic for the duration of the tenancy.
Landlord’s inspection
The Tenants told the Tribunal that the Landlord had spent over 40 minutes inspecting the
dwelling on the 12th December 2015, the day they left the dwelling. They said that he
had opened every door in the property and took a long time inspecting every detail. At the
end of the inspection he confirmed that he was satisfied with the condition of the property.
They said that they had informed the Landlord that they were moving house as they
needed a bigger house to facilitate their children and the Landlord had asked that they
move out within 2 weeks rather give 4 weeks’ notice, as they would have preferred to do.
For this reason they said they did not have an opportunity to attend to the damaged items
in the property, such as the window board. They also said that it had been agreed with
the Landlord that they could leave tools in the shed for a couple of days after they moved
out but the Landlord had subsequently called to their new dwelling and insisted they
remove the items immediately which they had to do in torrential weather conditions.
Rubbish
The Tenants said that the only rubbish they had left in the dwelling was rubbish they had
placed into 2 wheelie bins which were paid for prior to them leaving.
Fleas
The Tenants wholly disputed the Landlord’s allegation that they had caused a flea
infestation in the dwelling. They said they took great care in hoovering dog hairs, often
twice daily and cleaning their dogs. They had used their own beds during the course of
the tenancy and they could not be held responsible for a flea infestation which occurred 3
months after they had vacated the property.
In summary the Tenants stated that the Landlord had inspected the property 3 times
during the course of the tenancy and as late as September 2015 had renewed the
tenancy with them for a further period of 12 months. At no point during those inspections
had he raised any issues with the Tenants which suggested damage in excess of fair
wear and tear, save for the damage caused by the scratches to a door which had been
repaired by them. They submitted that the condition of the dwelling as shown in the
Landlord’s photos did not correspond with the condition in which they left the dwelling.
Respondent Landlord’s Case:
The Landlord told the Tribunal he had met the Tenant in September 2013. He disputed
that he had ever advertised the property by way of a supermarket advertisement and said
it was advertised online for €140 rent per week.
He disputed the Tenants’ contention that an extra €5 rent was agreed for damage caused
by the dog and said the rent was always €135 plus any additional damage caused by the
dog.
He confirmed to the Tribunal that he was aware that a dog was moving into the property
with the Tenants.
He said the Tenants had phoned him on the 1st December 2015 to tell him they wanted
to move out and that he was very glad that they were going. He knew the house wasn’t
in great condition at that time. He had during previous inspections noticed scratch marks
on the doors and felt they didn’t keep the dog under control despite his request for them
to do so.
When he inspected the house when the Tenants were leaving on the 12th December he
didn’t see the extent of the damage. He said he spent only 20 minutes looking at the
dwelling. The inspection had been carried out in the dark at 4.30pm as the Tenants had
refused to allow him in during daylight hours and he was in a rush to get to work and had
not paid particular attention.
He contended there was always a delay when he tried to inspect the dwelling. Initially he
said he thought it was just untidiness in the house but later on a more thorough inspection
noticed that the walls were greasy, there were dirty floor mats on the floor and a net
curtain had covered the window board damage. He hadn’t noticed the damage to the
spindle on the stairs or the banisters as he had been concentrating on the bedrooms and
noticed that the bed had been taken apart. He said he had wanted the Tenants out in
order to repair the damage and he had noticed that the sofa was ruined but he didn’t say
anything because he wanted them to leave without argument or incident.
He said during the course of the tenancy they had done a very bad job in spraying a door
in the kitchen/utility area which had been scratched and he felt they would do a bad job
repairing anything else. He said they had created holes in a number of walls which had
been poorly filled and had required rectification work. On the 18th or 19th December
2015 when he fully inspected the property he noticed the stair spindles were at an angle.
He said there were bite marks on the chairs. He spent €716 having a workman repair the
damage caused by the dog to the chairs, window board, spindles and banister and
submitted an invoice to vouch this cost.
He said the Tenants had left rubbish behind in the property including a broken
microwave, broken vacuum cleaner and rubbish at the side of the shed. He said there
was a hole in the shed, there were holes in the garden and the damage was extensive
and in excess of fair wear and tear.
He said the sofa had teeth and claw marks and stuffing had been removed to the extent
he had to purchase a new sofa. He had to clean the fire place out which was filled with
rubbish including a metal fork and milk carton. He said there was soot on the walls in the
living room which he had to repaint. He said the walls were greasy and had to be cleaned
and repainted and the door handle on the fridge had to be replaced. The floor had been
replaced although he accepted that the floor needed replacing and was not making any
claim against the Tenants for same.
He alleged a tree had been broken on purpose.
He said he had to engage a number of tradesmen to assist him in making the property
suitable for re-letting and he had only re-let the property in February 2016. He submitted
numerous invoices for the various items of expenditure including work carried out to the
stairs, window board and chairs, a new microwave, painting, cleaning, loss of rent due to
the condition of the property, pest control in relation to a flea infestation, claim for
replacement oil. He confirmed he was satisfied with the amount awarded by the
adjudicator in respect of damage in excess of fair wear and tear in the sum of €1,267.15.
However he was making an additional claim in respect of the microwave in the sum of
€44.10 and in respect of cleaning €150, repainting €250, repairing €30, treatment with
residual insecticide €221.40, loss of memory foam mattress €175, removal of bed €20,
cost of tree €20. In summary his total claim for damage in excess of fair wear and tear
was €2,177.65.
Rent arrears
The Landlord submitted that he was owed four weeks rent being €540. He submitted
further records to outline the rental payments he had received from the Tenants to
demonstrate these arrears.
6. Matters Agreed Between the Parties
1. The Tenancy commenced in September 2013
2. The Tenancy terminated on 14 December 2015
3. The weekly rent was €135
4. The security deposit was €675, which is still retained by the Landlord
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 findings and reasons thereof, are set out
hereunder.
7.1 Finding: The Tenants are in arrears of rent in the sum of €540 in breach of their
obligations under Section 16(a) of the Act.
Reasons:
The Tenants have an obligation under Section 16(a) of the Act to pay the rent as it falls
due for payment.
The actual date of the commencement of the Tenancy was in dispute between the
parties, the Landlord said it was 3 September 2013 and the Tenant said it was 6
September 2013. The tenancy ended on 12 December 2015. Even taking the later
commencement date, the Tenancy was 828 days being just over 118 weeks.
By the Tenants own admission they were in arrears of rent for a period of 2 weeks.
However, the Tenants submitted these calculations were based on a tenancy duration of
116 weeks. They gave evidence that they paid 111 payments by electronic means and 3
by quick lodge. It appears to the Tribunal that the Tenants miscalculated the arrears
based on the dates and as the Tenancy was 118 weeks, the Tenants owed 4 weeks rent
being €540, as claimed by the Landlord.
7.2 Finding: The Tenants are in breach of their obligations under Section 16 (f) of the Act
not to do any act that would cause a deterioration in the condition the dwelling was in on
the commencement of the tenancy.
Reasons:
In determining whether this obligation has been complied with any deterioration owing to
normal wear and tear is disregarded. In assessing normal wear and tear the Tribunal
took into account the fact that the tenancy commenced in September 2013 and ended in
December 2015. It is also noted that the Landlord permitted a dog in the dwelling at the
outset of the tenancy.
The Tribunal finds, based on the evidence before it and in particular the photographs
submitted, that on the balance of probabilities the damage to the chairs, banister,
spindles and window board were caused by the Tenant’s dog(s) and that this amounted
to damage in excess of normal wear and tear. The Tribunal noted the Tenants accepted
the dog had caused damage to the window board and they also accepted they had
damaged door locks. The Tribunal determines that the Landlord is entitled to his claim of
€709.38 in respect of same which was vouched in the form of an invoice. The Tribunal
does not accept the Tenants contention that the weekly rent included a €5 contingency
for damage caused by their dog. The Tribunal noted this was not reflected in the written
Tenancy agreement between the parties as it ought to have been if agreed between the
parties as a special condition of the letting and it was wholly disputed by the Landlord.
The Tribunal finds on the balance of probabilities that the sofa was damaged beyond
normal wear and tear. It was noted however that the sofa was 3 years old when the
Tenants commenced occupation and therefore 5 years old when the Tenants vacated the
dwelling. The Landlord spent €359.10 on a new sofa and the Tribunal awards a
contribution of €100 to the cost of the new sofa with €20 for the removal of the old sofa.
The Tribunal does not accept, on the evidence before it that the Tenants caused damage
to the oil tank, as alleged, but notes that the Tenants had agreed, at the outset of the
tenancy, that they would replace the oil or pay €250 on the termination of the tenancy
which they did not do. The Tribunal determines that the Landlord is entitled to a sum of
€250 in respect of replacement oil.
The Tribunal notes that the Tenants accepted that they had broken the fridge handle and
determines that a sum of €14.95 is reasonable in respect of the Landlord’s claim for
same.
In respect of the garden, the Tribunal notes the description of the garden given by the
Tenants, which was not disputed by the Landlord, that it was a sloping garden with a
propensity to be boggy. Given the time of year, on the balance of probabilities, the
Tribunal accepts that the tree was in all likelihood damaged by poor weather conditions
and the holes in the garden were caused by the removal of items of the Tenants’ items
from the shed by the Landlord in poor conditions.
The Tribunal accepts the evidence of the Tenants that they replaced the Landlord’s
microwave in the dwelling during the course of the tenancy and accepts on the balance of
probabilities that the microwave was working when the Tenants left the dwelling and
makes no award in respect of same.
The Tribunal notes that pest controllers sprayed the dwelling with residual insect pesticide
on the 4th April 2016, almost 4 months after the tenants had vacated the property. While
the Tribunal notes the Landlord first received communication from the new Tenant on the
19th March 2016 suspecting there may be bed bugs it was also a substantial period of
time after the Tenants had vacated the property. It was also noted from the Tenants’
evidence that they did not use the beds in the property as provided by the Landlord and
had use of their own beds which they had taken to their new property when they left the
dwelling. On this basis the Tribunal finds on the balance of probabilities that the fleas
were not caused by the Tenants dogs and does not allow the Landlord’s claim for same.
The Tribunal noted the claim for cleaning submitted by the Landlord in the sum of €150.
Given the duration of the Tenancy the Tribunal does not consider this to be damage in
excess of fair wear and tear. It would also be expected that some repainting and repairing
in the sum of €250 would be required, however given the duration of the tenancy the
Tribunal does not allow this claim.
The Tribunal noted the Landlord’s claim for damages for one month’s rent which he says
was required to carry out repairs. It is noted that the Tenants left the dwelling on the 14th
December 2015 and the Landlord re-let the property in February 2016 with Christmas
occurring in the intervening period. The Tribunal does not consider the damage caused
to the property to be such that the Landlord could not let the dwelling sooner and it is
noted the Landlord asked the Tenants to move out sooner than their 4 week notice
period.
8. Determination:
Tribunal Reference TR0416-001731
In the matter of Bernard McEneaney, Kristin Webster (Tenant) and Martin Earley
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The Appellant Tenants shall pay the total sum of €959.33 to the Respondent Landlord,
in two consecutive monthly payments of €400 on the 28th day of each month followed
by one payment of €159.33 on the 28th day of the immediately succeeding month,
commencing on the 28th day of the month immediately following the date of issue of
this Order, being rent arrears of €540, cost of replacement oil of €250 and damages of
€844.33 in respect of damage to the dwelling in excess or ordinary wear and tear
having deducted the justifiably retained security deposit of €675 in respect of the
dwelling at 10 Pairc Cluain, Mulgannon, Wexford.
The enforcement of this Order for such payment of €959.33 will be deferred and the
total sum owing or reduced by the cumulative sum paid and the monthly instalments
made by the Appellant Tenants to the Respondent Landlord on each date until such
time as the total sum of €959.33 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 of any monthly payment shall immediately become due and owing to the
Respondent Landlord.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
21 June 2016.
Signed:
Ciara Doyle Chairperson
For and on behalf of the Tribunal.

 

 

McKenna v Malone

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001716 / Case Ref No: 0116-23646
Appellant Landlord: Michael McKenna
Respondent Tenant: Shane Malone
Address of Rented Dwelling: 48 Beaverbrook, Donabate , Dublin, k36ay92
Tribunal: Suzy Quirke (Chairperson)
Dervla Quinn, Healy Hynes
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’olier Street, Dublin 2
Date & time of Hearing: 22 July 2016 at 10:30
Attendees: Eileen O’Hora (Appellant Landlords’ representative)
Seamus O’Hora (Appellant Landlords’
representative)
Shane Malone (Respondent Tenant)
Aimee Farrell (Respondent Tenant)
In Attendance: Wordwise Stenographers
1. Background:
On 19 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 15 February 2016. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €1,400 to the Applicant Tenant,
within 7 days of the date of issue of this Order, being the balance of the unjustifiably
retained security deposit of €1,825 having deducted €425 in damage to the dwelling
in excess of ordinary wear and tear, in respect of the tenancy of the dwelling at 48
Beaverbrook, Donate, Dublin.
Subsequently the following appeal was received from the Landlord on 13 April 2016. The
grounds of the appeal are Breach of tenant obligations, Other and Overholding. The
appeal was approved by the Board on 19 April 2016
The RTB constituted a Tenancy Tribunal and appointed Dervla Quinn, Suzy Quirke,
Healy Hynes as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Suzy Quirke 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 22 July 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 confirmed with the Parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received and understood the RTB document entitled “Tribunal Procedures”.
The Chairperson 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 possible; that the person(s) 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 be then invited to present his case, and that
there would be an opportunity for cross-examination by the Appellant. The Chairperson
explained that following this, the parties would be given an opportunity to make a final
submission.
The Chairperson 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 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 and the hearing commenced.
5. Submissions of the Parties:
The Appellant Landlords’ Case:
The appeal referred by the Appellant Landlords concerns the Adjudicator’s findings in
relation to the Respondent Tenants’ application for unjustified retention of the security
deposit. The Adjudicator found that the deposit had been partially unjustifiably withheld
and that the landlord was entitled to retain €425 of the total security deposit of €1,825 to
cover damage to the dwelling in excess of normal wear and tear. The Appellant
Landlords’ representative stated that the dwelling had been left in a very poor condition of
cleanliness and that they had incurred significant costs totalling €950.56 in engaging a
professional cleaning company to bring the dwelling up to the condition in which it had
been let to the Respondent Tenants. Details of the cleaning works carried out as part of
the Elite package were presented in evidence by the Appellant Landlords.
The Appellant Landlords’ representative stated that there had been confusion over the
date on which the Respondent Tenants were due to vacate the dwelling and that although
the latter had stated that they were going on Friday 4 December 2015, they were still in
occupation – although most of their belongings had been removed at this stage – on the
morning of Saturday 5 December 2015 when the Appellant Landlords’ representative
called to the house to carry out an inspection.
The Appellant Landlords’ representative agreed to return on Monday to inspect. She
returned to the dwelling on Monday and stated that she was horrified at the ‘dirt of the
place’ and the condition in which she found the dwelling. She claimed that her shoes were
sticking to the floor in the kitchen and sunroom because it was so dirty and that one of the
bedrooms was particularly bad.
She stated that the carpets were stained and marked, the bathroom required a deep
clean, the oven and extractor fan weren’t working properly due to a build-up of grease
and dirt, the window frames and skirting boards were dirty.
She had had a difficult conversation with one of the Respondent Tenants and thereafter
had asked the property management and letting agent, to take over.
The Respondent Tenants’ Case:
The Respondent Tenants accepted that they had vacated the dwelling in a hurry but
maintained that they had cleaned the house thoroughly with the exception of the following
items –
the final vacuuming of the stairs,
one of the kitchen presses had not been fully cleared out,
the fridge and microwave had not been cleaned and
the mattress protector on one bed had not been removed and washed.
The time taken to clean the above was estimated by the Respondent Tenants at five
hours at a standard rate of €15 per hour for cleaning and to this end they were accepting
that the Appellant Landlords could retain €60 of the security deposit.
They stated that they had been in conversation with the Appellant Landlords’ letting
agent. He had told them to drop keys to him on Monday 7 December 2015. They
contended that the cleaning package carried out and costing €950.56 was totally
unnecessary for the dwelling and that the landlords had been overcharged by the
cleaning company and were trying to recoup this cost out of the Respondent Tenants’
security deposit. They acknowledged that they had left a few small jobs undone but that
the condition of the dwelling did not require three cleaners for one day and four for a
second day as was alleged by the cleaning company engaged by the property
management and letting agent.
The Respondent Tenants alleged that much of the photographic evidence submitted was
the same item of ‘disrepair’ or un-cleanliness photographed a number of times and that
this made it look like the entire house was dirty. For example, a number of photographs of
light switches were presented while the Respondent Tenants maintain that a single light
switch was smudged.
They also maintained that they had rented the house for a period of three years, had
never left rent or utility bills unpaid and that in normal family life especially with small
children, a few scuffs and scrapes fell under normal wear and tear.
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 her that the following factual matters in relation to the tenancy were not
in dispute between the parties:
1) The tenancy commenced on 4 February 2013.
2) The Respondent Tenants vacated the dwelling on 5 December 2015.
3) The Respondent Tenants paid a security deposit of €1,825 of which €789.44 was
returned to them some months ago.
4) There were no arrears of rent.
7. Findings and Reasons:
Having considered the evidence provided the Tribunal has made the following findings:
Finding No. 7.1
The Tribunal finds that the Appellant Landlords have unlawfully retained €1,035.56 of the
original security deposit of €1,825 and partially upholds the Appellant Tenant’s claim for
unlawful retention of the deposit. The Tribunal finds that the Appellant Landlords are
entitled to retain €200 of the remaining €1,035.56 of the security deposit.
Reason(s):
Section 12 (1) of the Act provides that a landlord shall, 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 or lease’. Section 16 (4)(a) provides that no amount of the
deposit shall be required to be returned where (i) there is default in the payment of rent
and the amount of rent in arrears is in excess of the amount of the deposit or (ii)
compliance with Section 16 (f), amount of the costs that would be incurred by the landlord
… 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.
This relates to damage in excess of normal wear and tear to the dwelling. In this instance
there are no rent arrears but the Respondent Tenants have accepted that there were a
couple of items which they did not clean in a satisfactory manner. Accordingly the
Tribunal finds that the Appellant Landlords are entitled to retain an amount which would
cover the cost of cleaning same. In their opinion the sum of €200 is an appropriate
amount for the Appellant Landlords to retain.
The Tribunal finds that in assessing wear and tear the Appellant Landlords must accept
the fact that the tenancy was for a period of almost three years and that they were aware
at the time of the original letting that the Respondent Tenants had a young family.
8. Determination:
Tribunal Reference TR0416-001716
In the matter of Michael McKenna (Landlord) and Shane Malone (Tenant) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Appellant Landlords shall pay the total sumof €835.56 to the Respondent
Tenants, within 7 days of the date of issue of this Order, being the balance of the
unjustifiably retained remainder of the deposit of €1,035.56 having deducted €200 in
damage to the dwelling in excess of ordinary wear and tear, in respect of the tenancy
of the dwelling at 48 Beaverbrook, Donabate, Co Dublin.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
08 August 2016.
Signed:
SuzyQuirke Chairperson
For and on behalf of the Tribunal.

 

Medioros 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.

 

Mongon v Hackett

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1214-000986 / Case Ref No: 1014-14626
Appellant Tenant: Brigid Mongon
Respondent Landlord: Cyril Hackett
Address of Rented Dwelling: 40 Hillcrest Avenue, Lucan , Co. Dublin.
Tribunal: John FitzGerald (Chairperson)
Gene Feighery, Thomas Reilly
Venue: Tribunal Room, PRTB, Floor 2, O’Connell Bridge House, D’Olier Street, Dublin 2.
Date & time of Hearing: 29 April 2015 at 2:30
Attendees:
Brigid Mongon, Appellant, Tenant.
Cyril Hackett, Respondent, Landlord.
Robert Alexander, Solicitor, Tenant.
Micheal Venn BL, Representative, Tenant.
Allanah McGurk BL, Representative, Landlord.
In Attendance:
Gwen Malone Stenographers.
Michael Mooney, Interpretor.
1. Background:
On 08 October 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 20 November 2014. The Adjudicator determined that:
1. The Notice of Termination served on the 7th October 2014, by the Respondent Landlords on the Applicant Tenant, in respect of the tenancy of the dwelling at 40 Hillcrest Avenue, Lucan, County Dublin is valid.
2. The Applicant Tenant and all persons residing in the above dwelling shall vacate and give up possession of the dwelling within 14 days of the date of issue of the Order.
3. The Applicant Tenant shall pay the total sum of €1000.00 to the Respondent Landlords within 28 days of the date of issue of the Order, the said sum comprising of general damages for the Applicant Tenant’s breach of her obligations under the Act, including anti-social behaviour and over-holding the property, in respect of the tenancy of the above dwelling.
4. The Applicant Tenant shall also pay any further rent outstanding from the 20 November 2014, at the rate of €900.00 per calendar month or proportional part thereof at the rate of €29.59 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.
5. The enforcement of the Order for such payment will arise if the sum due is not paid within the said period.
Subsequently the following appeal was received on 22 December 2014. The grounds of the appeal related to the unlawful termination of tenancy arising from an invalid notice of termination. The appeal was approved by the Board at their meeting on 09 January 2015.
The PRTB constituted a Tenancy Tribunal and appointed John FitzGerald, Gene Feighery and Thomas Reilly 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 29 April 2015 the Tribunal convened a hearing at Tribunal Room, PRTB, Floor 2, 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 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 Tenant’s Case:
Evidence of Brigid Mongan (Appellant Tenant):
The Appellant Tenant challenged the validity of the 7 day notice of termination issued by the Respondent Landlord on 7 October 2014 wherein he cited anti-social behaviour and the running of a business from the dwelling contrary to the provisions of the Act as grounds for terminating the tenancy. She said that the Respondent Landlord had never raised the issue of anti-social behaviour with her and she outlined that neither she, nor any member of her family had ever engaged in any anti-social behaviour. She stated that she had a good relationship with all the neighbours and would do nothing to upset that relationship. She said that she was never in trouble with the Garda Siochána. She denied that her husband had ever been abusive to the Respondent Landlord but she accepted that the family had a habit of conversing loudly and that this tone can often be misinterpreted.
She outlined that she had always complied with her obligations to pay her rent on time and in full. She said that she liked the area, however if she was offered alternative accommodation, she would be happy to move from the dwelling. She could not accept a termination notice issued on grounds of anti-social behaviour in circumstances where the unfounded allegation may be recorded on her file with the Council.
The Appellant Tenant further gave evidence that nobody in the house had ever carried out a car sales or service business from the dwelling. She said that any works carried out on her husband’s car related to a service in advance of a pending NCT test. She said that there was limited parking around the dwelling and the number of cars parked in the vicinity belonged to various neighbours and members of her family when they visited the dwelling. She said that she is a mother of 12 children, all of whom are grown up and married and that they often visited her.
She said that the signed lease agreement between the parties in December 2010, related to the tenancy for herself and her son. She conceded however that she had breached the terms of her lease by failing to notify the Landlord in writing that her husband and daughter also lived in the dwelling with her.
She stated that the dwelling is maintained to a high standard and that there is no damage to the dwelling in excess of normal wear and tear. She did however concede that she had carried out alterations to the dwelling without the express permission of the Landlord contrary to the provisions of the Act. The alterations included, inter alia, the removal of hall carpet and replacement with laminate flooring, removal of existing lights and replacement with chandeliers, hanging wallpaper, and replacement of the Landlord’s couches. She said the Landlord removed the cushions from the couches and left the couch frame in the garden shed until he could get a van to remove it. She said that when the Respondent Landlord complained about the alterations to the lights she reverted to the original light fittings.
The Appellant Tenant stated that the last time the Respondent Landlord had visited the dwelling was in July or August 2013. She went on to say that she had got on very well with the Respondent Landlord when he visited the dwelling and she rejected the allegation that her husband physically threatened the Respondent Landlord when he was at the dwelling for the purposes of carrying out an inspection. She further rejected that an elderly neighbour was threatened by her husband. She stated that on one occasion there had been trouble at the dwelling, but that this was caused by one of her daughters and that she had been removed by the Garda Siochána.
Respondent Landlord’s Case:
Evidence of Cyril Hackett:
The Respondent Landlord said that the tenancy of the dwelling (a 3 bedroomed terrace house), between the parties was constituted under the Rental Accommodation Scheme “RAS” and South Dublin County Council. He said that he received correspondence from the Council on 3 April 2014 indicating that the tenants were in breach of the terms of their lease arising from their carrying on a business from the dwelling and engaging in anti-social behaviour. He said he received written instruction from the Council to issue the tenant’s with a seven day notice of termination. A copy of the letter from the Council was adduced in evidence in support of this claim. He said he complied with this instruction and on 7 October 2014 he issued the tenants with a seven day notice indicating that the tenancy would end on 14 October 2014.
He outlined to the Tribunal that the RAS tenancy had originally stipulated that the Appellant Tenant and her son were to be the sole occupants of the dwelling and he had never given his consent to the occupancy of her husband and daughter. He said that when he first met the Appellant Tenant’s husband in the dwelling he was introduced to him as the Appellant Tenant’s brother who was visiting. Later, he said the story changed and he was told the man in question was the Appellant Tenant’s husband.
He said that shortly after the Appellant Tenant moved into the dwelling he asked the Tenant if he could carry out an inspection. When he visited the dwelling, the carpet and skirting boards had been removed and replacement tiles had been installed. The work was carried out without his permission and was poorly executed and the Appellant Tenant refused to tell him who carried out the job. He said that further changes to the dwelling took place, again without permission as time went on, including replacing the existing lights with chandeliers, removal of furnishings and repainting the dwelling. He said he was very concerned that the works were not carried out by qualified contractors. He said that there was a deterioration in the condition of the dwelling, beyond that of normal wear and tear, and he cited that the shed window was broken, bathroom tiles were broken and removed, kitchen presses were warped, his furniture was gone and replaced with the Appellant Tenant’s choice.
He gave evidence that in the summer of 2013 he went to the dwelling to carry out an inspection and take some photographs. During his visit he said that he was physically threatened and abused by the Appellant Tenant’s husband whom he advised the Tribunal he believed to be a violent man. He said that the Appellant Tenant’s son and daughter restrained the Appellant Tenant’s husband during the incident. The Respondent Landlord said he did not report the incident to the Garda Siochána.
The Respondent Landlord also referred to alleged complaints of anti-social behaviour on the part of the Appellant Tenant’s husband and visitors to the dwelling and he supported
his claim with written statements from residents and from South Dublin County Council. These statements were unsigned because he alleged the residents were concerned about reprisals. He alleged that an elderly resident was intimidated by the Appellant Tenant’s husband when he called to his home and accused him of reporting him to the Council.
He said that any complaints about the alleged anti-social behaviour carried out by the Appellant Tenant and visitors to the dwelling were routed to him through the County Council. He said that when he received a complaint from the Council, he contacted the Appellant Tenant, but he found her to be evasive when he raised issues with her regarding the dwelling and her obligations as a tenant. He could not see a solution to the difficulty while the Appellant Tenant was in occupancy with her husband who he never rented the dwelling to.
Summing up his evidence, the Respondent Landlord said that there is evidence of excessive damage to the dwelling beyond normal wear and tear. He said that there are beds in every room and that the Tenant is in breach of the terms of her lease in this regard. He said that there is evidence of anti-social behaviour carried out by the Appellant Tenant and visitors to her dwelling. He cannot adduce any correspondence from the Appellant Tenant in support of his evidence because she never reduced her responses to his complaints to writing. He said that he believes that there is a car repair/sales business being carried out from the dwelling contrary to the provisions of the Act.
Finally, he said that he wished to rely on the Notice of Termination which had been served and he sought vacant possession of the dwelling.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The tenancy commenced on 6 December 2010.
2. The monthly rent payable is €900 per month.
3. There was no security deposit paid.
4. This was a RAS tenancy.
5. There are no arrears of rent.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence presented to it by the Parties, the Tribunal’s findings and reasons therefor, are set out hereunder.
7.1 Finding:
The Tribunal find that this is a further Part 4 IV tenancy of five months duration.
Reasons:
It was agreed by the parties that the tenancy commenced on 6 December 2010. Once the tenant had been in occupation of the dwelling for a continuous period of 6 months the tenancy became a Part 4 tenancy subject to the statutory protection that it continue in
being for a period of 4 years from the commencement of the tenancy up to and including 5 December 2014.
Following the expiry – on 5 December 2014 in this case – a further Part 4 IV tenancy commenced on 6 December 2014. The statutory protection specified in section 28(2) of the Act, section 41 provides that a second or further Part 4 tenancy will automatically arise in the event of a notice of termination under section 34 or section 36 not having been served prior to that expiration date.
The fact that a tenant may have been in occupation for over four years is not directly relevant in assessing whether a new tenancy has commenced or not. A further Part 4 tenancy is described as ‘a new tenancy’ in section 41(1) of the Act. Its commencement date having regard to the provisions of section 41(3) of the Act is the date of expiry of the previous Part 4 tenancy – again the 5 December 2014 in this case. Based on section 41, a further Part 4 tenancy is a separate and distinct tenancy from the previous Part 4 tenancy and is therefore a new tenancy for the purposes of section 62(1)(e) of the Act. This is consistent with Section 43(a) which refers to “another such tenancy” coming into being on the expiry of the Part 4 tenancy. On that basis, subject to any other tenancy agreement in existence between the parties, such as a fixed term or periodic tenancy, section 41 permits a Landlord to terminate a further Part 4 tenancy within the first six months of that tenancy without giving a reason with a notice period of no less than 112 days.
7.2 Finding:
The Tribunal finds insufficient evidence of anti-social behaviour on the part of the Appellant Tenants to justify a finding of anti-social behaviour under Section 17 (a) by the Tribunal and therefore the Notice of Termination dated 7 October 2014 served by the Respondent Landlord on the Appellant Tenant is invalid.
Reasons:
The Respondent Landlord failed to persuade the Tribunal on the balance of probability that the Appellant Tenant was in breach of her obligations under Section 16 (h) not to behave within the dwelling, or in the vicinity of it in a way that is anti-social or to allow other occupiers of, or in the vicinity of the dwelling to behave within it in such a way. Furthermore, anti-social behaviour as set out in section 17(a) of the act prohibits tenants from engaging in behaviour that constituted the commission of an offence, being an offence the commission of which is reasonably likely to affect directly the wellbeing or welfare of others.
Although the Respondent Landlord gave direct oral testimony of an incident wherein he alleged he was intimidated and physically threatened by the husband of the Appellant Tenant (who was residing in the dwelling without permission), when he called to carry out an inspection of the dwelling, he failed to report this incident to the Garda Siochána. In addition, with the exception of anonymous statements from adjoining residents and a letter from South Dublin County Council referring to ‘anti-social behaviour’ the oral testimony of the Respondent Landlord was sufficiently vague and imprecise to ground a finding of anti-social behaviour under Section 17 (a), which is a very serious finding and one which, according to South Dublin County Council’s letter dated 3rd April 2014 may result in a refusal by the Council to provide the Appellant Tenant with alternative accommodation.
The Respondent Landlord defended the Appellant Tenant’s appeal of the notice of termination on grounds of anti-social behaviour largely on the basis of breaches of tenant obligations under sections 16 (f) not to do any act that would cause a deterioration in the condition the dwelling was in at the commencement of the tenancy, 16 (l) not to alter or improve the dwelling without the written consent of the landlord, 16 (m) not to use the dwelling or cause it to be used for any purpose other than as a dwelling without the written consent of the landlord and 16 (n) notify the landlord in writing of the identity of each person who for the time being resides ordinarily in the dwelling and 34 the dwelling is no longer suitable to the accommodation needs of the tenant and any persons residing with her having regard to the number of bed spaces contained in the dwelling and the size and composition of the occupying household. Regardless of the foregoing, the Respondent Landlord, acting on instruction from South Dublin County Council and other advices, relied on a notice of termination on grounds of anti-social behaviour under Section 17 (a), for which there was insufficient supporting evidence.
8. Determination:
Tribunal Reference TR1214-000986
In the matter of Brigid Mongon (Tenant) and Cyril Hackett (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Notice of Termination served by the Respondent Landlord on the Appellant Tenants on 7 October 2014 is invalid.
2. The Appellant Tenant shall continue to pay rent at a rate of €900 per month or part thereof or at a daily rate of €29.59 per day unless lawfully varied and any other charges as set out in the tenancy agreement.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 10/05/2015.
Signed:
John FitzGerald Chairperson
For and on behalf of the Tribunal.

O’Connor v Dulak

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0715-001268 / Case Ref No: 0515-18419
Applicant Landlord: Peter O’Connor
Respondent Tenant: Adam Dulak
Address of Rented Dwelling: Number 2 Glemwood Close, Dublin Road, Dundalk,
Louth, A91N2C8
Tribunal: Gene Feighery (Chairperson)
Vincent P. Martin, Dairine Mac Fadden
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 02 June 2016 at 10:30
Attendees: Adam Dulak, (Respondent Tenant)
Patrick Wojcik (Witness for Respondent Tenant)
Peter O’Connor (Applicant Landlord)
Josephine O’Connor (Witness for Applicant
Landlord)
In Attendance: DTI Wordwave Recording Technicians
1. Background:
On 5 May 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 a Mediation which
took place on 17 June 2015 following which a Statement of Mediation was issued to the
effect that:
No matters have been agreed to by the parties which resolve in whole or in part the
dispute in respect of the tenancy of the dwelling at 2 Glenwood Close, Dublin Road,
Dundalk, Co. Louth.
Subsequently the unresolved matters between the parties were referred to a Tribunal
following an application was received from the Landlord on 8 July 2015. The application
related to Failure to provide payment for rent and utilities by tenant and Damage to
property within the rented accommodation.
The application was approved by the RTB.
The RTB constituted a Tenancy Tribunal and appointed Gene Feighery, Vincent P. Martin
and Dairine Mac Fadden 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 2 June 2016 the Tribunal convened a hearing at Tribunal Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
N/A
4. Procedure:
“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 an informal manner; that the person who
referred the dispute to the Tribunal (the Landlord in this case) would be invited to present
his 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 his
case, and that there would be an opportunity for cross-examination on behalf of the
Applicant Landlord. 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 be
recorded by the official stenographer present and reminded the Parties that to knowingly
providine 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:
Applicant Landlord’s Case:
Evidence of Peter O’Connor
The Applicant Landlord stated that he had twenty years experience as a Landlord of a
number of properties. He said that the tenancy of the dwelling, a four bedroom, four
bathroom semi-detached dwelling commenced in September 2014 on foot of a verbal
agreement when 5 individual tenants moved in. He said that two of the tenants were a
couple and occupied the double en-suite bedroom. He said that monthly rental payment
for the tenancy was €1,200 or part thereof, plus utilities divided proportionately between
the tenants. He said that all utility bills remained in his name and that he routinely issued
the Tenants with a copy of their bills. He said that by agreed arrangement with the
Tenants he collected the rent in cash at the beginning of the month, when he called to the
dwelling.
In December 2014 one tenant from the couple occupying the double en-suite bedroom
moved out. He said he returned the tenant’s €80 security deposit (1/5th of the €400
leaving a deposit €320) and despite the fact that he had a mortgage to pay on the
dwelling, he reduced the rental sum to €1,000 with effect from January 2015 between the
four remaining tenants.
He said that following this, the tenancy continued without incident however he was aware
that there were some tensions between individual members of the Tenants. He said that
on 9 May 2015 he got a text from one of the Tenants to say that the Respondent Tenant
and a further two Tenants had vacated the dwelling. The remaining Tenant told him that
arising from tensions between herself and the Respondent Tenant she either wanted their
keys to the dwelling returned or the locks changed as she was nervous alone in the
dwelling.
The Applicant Landlord stated that within 24 hours of having received the call from the
remaining Tenant he visited the dwelling where he found the Respondent Tenant’s room,
and that of his two fellow Tenants to be empty except for a desk. He said that there was
damage to the dwelling which he considered to be in excess of normal wear and tear,
however he did not wish to pursue this matter.
The Applicant Landlord said he sent the Respondent Tenant a text informing the
Respondent Tenant that he had visited the dwelling and changed the locks and that it
was no longer possible for the Respndent Tenants to gain entry. He sent a further text to
the Respondent Tenant instructing him to get in touch with him so that he and his two
fellow Tenants could resolve the issue of their portion of outstanding rent of €650 for the
month of May 2015 and utility bills which he calculated to be in the sum of €210. He said
he wanted the matter concluded and to move on.
Responding to questions from the Respondent Tenant the Applicant Landlord rejected
that there were clothes, shoes, a laptop, student papers, usb key or a work uniform
remaining in the rooms of the Respondent Tenant and his two fellow Tenants when they
vacated the dwelling and he further rejected that the Respondent Tenant gave him notice
that he was vacating the tenancy.
The Applicant Landlord rejected the Tenant’s assertion that his inspection of the dwelling,
which he carried out with his son, constituted anti-social behaviour in circumstances
where it was carried out by arrangement with the Respondent Tenant when he was at the
dwelling collecting the rental payment and that the Respondent Tenant had accompanied
himself and his son around the dwelling as they carried out the inspection.
Respondent Tenant’s Case:
Evidence of Adam Dulak:
The Respondent Tenant stated that the tenancy commenced in September 2014 when
five individuals, three students and one couple moved into the dwelling. He said that the
monthly rental payment was initially €1,200 per month, i.e. €240 per Tenant however this
arrangement was changed with effect from January 2015 when one individual from the
couple moved out and thereafter the monthly rent was €1,000 per month divided between
the four remaining Tenants at €250.
The Tenant stated that tensions arose between himself and the remaining tenant from the
couple and that ultimately relations broke down and they stopped communicating
altogether. He said the atmosphere in the dwelling was poor. He said that at one stage
the remaining tenant moved out and himself and his two fellow tenants were required to
make up the entire rental payment of €1,000 between themselves. However he said that
she returned again and the rental payments of €250 per Tenant resumed.
The Respondent Tenant stated that relations in the house between himself and the
remaining tenant from the couple continued to be very strained and that in April 2015 he
told the Landlord that he could no longer remain in the dwelling when the atmosphere
was so poor. He said that his verbal notice to the Landlord did not specify a date,
however he said he intended to return home to his parents. He said the Landlord was not
happy and he told him he had a mortgage on the dwelling that needed to be paid.
He said that himself and two of his fellow Tenants moved most of their belongings out of
the dwelling within 2-3 hours on 9 May 2015. When they returned to collect the remaining
items from their rooms, including his USB storage of exam notes, a desk he purchased
for €100, his fellow tenant’s KFC work uniform worth €70 and an Acer laptop with an
estimated value of €400-€500, clothes and bedclothes, they could not gain entry because
the locks had been changed. He said the Applicant Landlord, was inside the dwelling but
he refused them access to collect their remaining belongings until such time as they paid
outstanding bills and the monthly rent for May 2015.
The Respondent Tenant stated that he tried to telephone the Landlord to discuss the fact
that he had vacated the dwelling however he said that from 9 May he was unsuccessful
because the only contact detail he had for the Landlord was via mobile phone and the
Applicant Landlord failed to answer his calls.
The Respondent Tenant said that he continued to make attempts to contact the Applicant
Landlord so that they could come to some arrangement whereby he and his two fellow
Tenants could collect their belongings but he could get no response from the Landlord.
He said he then attempted to resolve the matter through other Agencies, including the
Garda Siochána and Threshold.
Regarding his allegation of anti-social behaviour against the Respondent Landlord, he
stated that on one occasion when the Landlord was at the dwelling by arrangement to
collect rent, he became insistent that there was a smell of drugs in the dwelling and he
demanded that himself and his son carry out an inspection of all the rooms. He said that
the Respondent Landlord was verbally abusive and even suggested that a high ESB bill
could be connected with a ‘grow house’ for recreational drugs. He said that having carried
out an inspection, the Respondent Landlord was satisfied that there was no evidence of
any drug or drug use in the dwelling.
The Respondent Tenant stated that he was unwilling to pay rent for the entire month of
May because he said that he informed the Landlord that he was moving out of the
dwelling owing to bad relations with another tenant. He said he is however prepared to
pay his utility bills for the period of the tenancy when he was there. Furthermore, he said
that all arrangements between the Landlord and himself regarding the tenancy were
verbal and that the Landlord had been happy to allow other tenants to move out following
verbal notice when he had returned their deposit.
6. Matters Agreed Between the Parties
• The Tenancy Commenced on 1 September 2014
• The monthly rental payent was €1,200 between five Tenants up to December 2014 &
€1,000 between 4 Tenants thereafter.
• A Security Deposit of €400 was paid at the commencement of the tenancy.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the attending parties, the Tribunal’s findings and reasons are set out
hereunder:
Finding 1.
The tenancy of the dwelling was a Part 4 tenancy under the Act as the Respondent
Tenants were in continuous occupation of the dwelling in excess of the requisite sixmonth
period. The Respondent Tenants paid a security deposit in the sum of €400 to the
Appellant Landlord at the commencement of the tenancy.
Finding 2.
The Respondent Tenant’s allegation of anti-social behaviour by the Applicant Landlord is
not upheld.
Reason:
Section 17 of the Act defines anti-social behaviour as follows:
(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,
(b) engage in behaviour that causes or could cause fear, danger, injury, damage or loss
to any person living, working or otherwise lawfully in the dwelling concerned or its vicinity
and, without prejudice to the generality of the foregoing, includes violence, intimidation,
coercion, harassment or obstruction of, or threats to, any such person, or
(c) engage persistently in behaviour that prevents or interferes with the peaceful
occupation
a. by any other person residing in the dwelling concerned of that dwelling
b. by any person residing in any other dwelling contained in the property containing the
dwelling concerned of that other dwelling, or
c. by any person residing in a dwelling (“neighbourhood dwelling”) in the vicinity of the
dwelling or the property containing the dwelling concerned, or that neighbourhood
dwelling.
An allegation of anti-social behaviour has serious implications for the character, person
and good name of a citizen as well as their accommodation and where it is alleged, a
heavy burden of proof rests on the Respondent Tenant to support such a claim. The
Applicant Landlord’s inspection of the dwelling does not fall within the provisions of antisocial
behaviour as described by the Respondent Tenant nor does it comply with the
provisions of the Act as outlined above.
Finding 3.
The Applicant Landlord is in breach of his obligations under section 58 of the Act which
states that: from the relevant date, a tenancy of a dwelling may not be terminated by the
landlord or the tenant by means of a notice of forefeiture, a re-entry or any ther process or
procedure not provided for under part 5.
Reason:
The Residential Tenancies Act 2004 outlines very precisely the conditions under which a
tenancy may be terminated by a landlord and the steps and procedures that must be
followed. The Landlord, with 20 years experience in the rental sector failed to comply
with the said provisions and stated that he entered the dwelling on the basis that he was
informed by the fifth and remaining tenant that the Respondent Tenant and his two fellow
tenants had vacated the dwelling and removed all of their possessions. He took no steps
to contact the Tenants to establish whether they had in fact vacated the dwelling but took
the unilateral action of changing the locks and texting the Tenants to inform them that he
had done this and that they could no longer gain access to the dwelling. At the time he
entered the dwelling and changed the locks, in or around the 9th/10th May 2015, there
was no rent payable except for the period between 1st to 10 May 2015 in the sum of
€328.76 (€1,000 X 12 months, divided by 365 days of the year X 10 days = €328.76) plus
an outstanding utility bill in the sum of €210.00. No notice of termination had been served
by the Tenants and it was not therefore open to the Applicant Landlord to rely on the
provisions of section 37 (2) of the Act regarding deemed termination by a tenant.
Having regard to the evidence of the parties, the Tribunal directs that an award in the sum
of €1,000 to the Respondent Tenant in accordnce with section 115(1) of the Act.
Finding 5.
The Tenant’s claim for items which remained in the dwelling following the unlawful
termination of the tenancy by the Landlord is not upheld.
Reason:
The Respondent Tenant had not prepared or supported evidence of his claim for any loss
and he relied on assistance of a friend on the day of the hearing to estimate the value of
the lost items. In order to secure a successful claim for loss, the Tribunal requires very
specific information on the value and supporting documentation and in the circumstances,
the Respondent Tenant’s claim for loss of belongings fails.
8. Determination:
Tribunal Reference TR0715-001268
In the matter of Peter O’Connor (Landlord) and Adam Dulak (Tenant) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
The Applicant Landlord shall pay the total sum of €1,271.24 to the Respondent
Tenant, within 28 days of the date of issue of the Order, being €1,500 in damages for
the consequences of unlawfully terminating the Respondent Tenant’s tenancy of the
dwelling, less €538.76 in rent arrears and outstanding utility bills and taking into
account the Tenant’s security deposit in the sum of €310 in respect of the dwelling at 2
Glenwood Close, Dundalk, Co. Louth.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
23 June 2016.
Signed:
Gene Feighery Chairperson
For and on behalf of the Tribunal.

O’Connor v FFL Investments

 

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0115-001009 / Case Ref No: 0914-14322
Appellant Tenant: Michael O’Connor
Respondent Landlord: FFL Investments Ltd
Address of Rented Dwelling: Flat 2A, 25 Bachelors Quay, Co. Cork
Tribunal: John FitzGerald (Chairperson)
Tim Ryan, Thomas Reilly
Venue: Committee Room 1, Cork City Council, City Hall, Anglesea Street, Co.Cork
Date & time of Hearing: 20 May 2015 at 11:00
Attendees:
Micheal O’Connor, Appellant Tenant
John Frank Lane, Respondent Landlord
David Lane, Witness
In Attendance:
Gwen Malone Stenographers.
1. Background:
On 22/09/2014 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 10/11/2014. The Adjudicator determined that:
1. The Respondent Tenant shall pay the total sum of €2,255 to the Applicant Landlord, at the rate of €500 per calendar month, on or before the 28th day of each month for 4 consecutive months, followed by a final payment of €255, on or before the 28th day of the 5th month, commencing the next month after the issue of the Order. This sum represents rent arrears of €1,775, plus damages of €1,000 in respect of anti-social behaviour, having deducted the entire of the justifiably retained security deposit of €520, in respect of the tenancy of the dwelling at Flat 2A, 25 Bachelor’s Quay, Co.Cork.
2. The enforcement of the Order for such payment will be deferred and the total sum owing will be reduced by the number of monthly instalments of €500 made by the Respondent Tenant to the Applicant Landlord on each due date until the sum of €2,255 has been paid in full.
3. 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 Applicant Landlord.
Subsequently the following appeal was received from the Appellant Tenant on 30/01/2015. The grounds of the appeal were rent arrears, overholding and anti-social behaviour. This was approved by the Board at their meeting on 20/02/2015.
The PRTB constituted a Tenancy Tribunal and appointed John FitzGerald, Tim Ryan and Thomas Reilly 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 20 May 2015 the Tribunal convened a hearing at Committee Room 1, Cork City Council, City Hall, Anglesea Street, Co.Cork.
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 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 his 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].
5. Submissions of the Parties:
Appellant Tenant’s Case:
Evidence of Michael O Connor (Tenant):
The Appellant Tenant stated that the rent arrears set out in the case file summary were incorrect. He gave evidence that he had paid some rent in cash and on occasions rent was not collected from the dwelling despite the fact that he had put it aside in respect of the payment. He went on to outline that he had notified the letting agent about a broken washing machine but nothing had happened following his complaint. He subsequently dealt with the Respondent Landlord’s son who had taken over the management of the dwelling from the agent and had agreed to a direct debit payment at this point.
He outlined to the Tribunal that he has a daughter who visited him on occasion and is in receipt of social welfare. He accepted that he was in receipt of the rent supplement himself which he in turn handed over to the Respondent Landlord, however he accepted that he had not done this once he received a Notice of Termination. He accepted that he owes rent in the sum of €1,430 and that he had not paid rent from August 2014. He did not accept the Respondent Landlord’s contention that rent arrears in the sum of €1,775 were outstanding and outlined that he found the Respondent Landlord intimidating and he only stopped paying rent when it became clear to him that the Respondent Landlord wanted him to leave.
The Appellant Tenant stated that the accusation of anti-social behaviour was unwarranted as the incident which took place where an assault happened in the public part of the building was an isolated occurance of which he was the victim of a vicious assault by persons who sought him out with the intention of causing him harm. He went on to say that in his four years in occupancy in the dwelling this was the only time that anti-social behaviour took place. The Appellant Tenant stated that following this the intimidation from the Respondent Landlord got worse and that following a complaint of loud music from a neighbour he was subjected to an antagonistic visit from the Respondent Landlord at 2.30am and in a very agitated state. He recalled the Respondent Landlord filming him from a tripod in the hall speaking loudly and using bad language.
The Appellant Tenant summed up by stating that he was worried that he would not get his security deposit back following the deterioration of his relationship with the Respondent Landlord and he held back rent supplement payments as he did not expect to be in a position to recoup the security deposit prior to termination.
Respondent Landlord’s Case:
Evidence of John Frank Lane (Landlord):
The Respondent Landlord gave evidence to say that from the commencement of the tenancy the rent payments were sporadic and always short of the due amounts and he went on to outline that the arrears were as follows for the duration of the tenancy:
2010 58%
2011 73%
2012 92%
2013 73%
2014 100%
He stated that rent was only ever paid up to date when rent allowance forms required completion by the landlord. He stated that the reason that three weeks rent was
uncollected in the initial stages of the tenancy was due to the fact that his letting agent’s father died and was unable to collect the rent for a two week period. He also outlined that she did not want to continue managing the dwelling due to abuse she was receiving from the Appellant Tenant. The Respondent Landlord’s son agreed to manage matters thereafter. He outlined that his son found it equally problematic and had to make appointments at times to suit the Appellant Tenant to get the bank’s standing order sorted out but rent payments never fully caught up and were paid in bits and pieces, never the correct money and always in arrears.
The Respondent Landlord gave evidence that he notified the Social Welfare in one of the forms that he filled out for the Appellant Tenant’s rent supplement payments that there was €100 in arrears and he also wrote to the Social Welfare to advise them that he had terminated the tenancy but got no reply.
The Respondent Landlord outlined to the Tribunal that both he and his son were constantly attempting to collect the outstanding rent payments and had written many notices to the Appellant Tenant. He also stated that he had received complaints from neighbours regarding severe anti-social behaviour in the dwelling and in the public areas and it was in this regard that he had served a Notice of Termination under section 17 of the Act following a threat he had received from persons unknown to him who wanted to cause harm to the Appellant Tenant. He stated that he was fearful for the safety of other residents in the building. He outlined that neighbours had informed him of the threat of burning down the Appellant Tenant’s dwelling from the unsavoury individuals who were frequenting the building and areas close to the building using abusive language and generally acting in a threatening fashion. The Respondent Landlord was fearful that something bad was going to happen and stated he did not trust the Appellant Tenant to deal with the matter successfully and was compelled to deal with the matter himself as part of his duty as a landlord and to others.
The Respondent Landlord outlined with reference to the rent schedules contained in the case file and calculated the full rent arrears at €1,775 and accepted that he was in possession of the security deposit of €520. He stated that the dwelling on inspection was in a very unclean state and questioned whether the fridge, cooker and especially the shower had ever been cleaned during the four years of the tenancy.
He summed up by stating that he never wanted to see the Appellant Tenant again and would like the Tribunal to make an order in respect of his outstanding arrears of rent. He was shocked that a person could obtain rent supplement and hold onto it in this manner. He outlined that on entering the dwelling following the tenancy the Appellant Tenant told him that if he pursued him he could be sued for up to €20,000.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The tenancy commenced on 23 August 2010.
2. The rent payable was €130 per week.
3. The security deposit paid was €520.
4. The tenancy terminated in early November 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 therefor, are set out hereunder.
7.1 Finding:
The Tribunal find that the Appellant Tenant is in breach of his obligations under section 16(a) of the Act for failure to pay the Respondent Landlord the rent provided for under the tenancy on the date it falls due for payment.
Reason:
In his oral testimony to the Tribunal the Appellant Tenant confirmed that he had withheld rental payments from the Respondent Landlord since August 2014. Documentary evidence from the Respondent Landlord outlined the sporadic nature of rent payments throughout the tenancy. The Tribunal accept the Respondent Landlord’s evidence that rent arrears in the sum of €1,775 less the security deposit in the sum of €520 which is held by the Respondent Landlord were due and owing to him at the termination of the tenancy and therefore award this amount to the Respondent Landlord by the Appellant Tenant in respect of the tenancy of the dwelling at Flat 2A, 25 Bachelors Quay, Cork.
7.2 Finding:
The Tribunal finds that the Appellant Tenant is in breach of his obligations under section 17(b) of the Act in that he was engaged in serious anti-social behaviour.
Reason:
The oral submissions of the Respondent Landlord were convincing and featured numerous instances of serious anti-social behaviour that took place both within and outside the dwelling. The alleged behaviours were associated with the Appellant Tenant and his associates engaging in behaviour that deprived the other residents peaceful enjoyment of their dwelling while also posing the threat of burning down the dwelling with the associated risk to life and limb of the residents. The Tribunal award the sum of €1000 for this breach.
8. Determination:
Tribunal Reference TR0115-001009
In the matter of Michael O’Connor (Tenant) and FFL Investments Ltd (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
The Appellant Tenant shall pay the total sum of €2,255.00 within 7 days of the date of the issue of the order being rent arrears of €1,775.00 plus €1,000.00 for the consequences of anti-social behaviour pursuant to Section 17 (b) of the Act, having deducted the lawfully held security deposit of €520.00 in respect of the tenancy at Flat 2A, 25 Bachelors Quay, Co.Cork.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 16/06/2015.
Signed:
John FitzGerald Chairperson
For and on behalf of the Tribunal.

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001684 / Case Ref No: 0116-23854
Appellant Landlord: Ray O’Donnell, David Kivlehan
Respondent Tenant: Stephen Brown
Address of Rented Dwelling: 12 St. Joachim’s Terrace , Sligo,
Tribunal: Helen-Claire O’Hanlon (Chairperson)
Vincent P. Martin, Finian Matthews
Venue: Council Chamber, Sligo County Council, County
Hall, Riverside, Sligo
Date & time of Hearing: 26 May 2016 at 2:30
Attendees: Ray O’Donnell (Appellant Landlord)
David Kivlehan (Appellant Landlord)
Gerard Clarke (Agent on behalf of Landlords)
Stephen Brown (Respondent Tenant)
In Attendance: DTI Wordwave Recording Technicians
1. Background:
On 28 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 22 February 2016. The Adjudicator determined that:
1. The Notice of Termination dated 1st December 2015 served by the Respondent
Landlords on the Applicant Tenant, in respect of the tenancy of the dwelling at 12 St.
Joachim’s Terrace , Sligo is invalid;
2. The Respondent Landlords shall pay the total sum of €428.74 to the Applicant
Tenant, within seven days of the date of issue of this Order, being the balance of the
unjustifiably retained security deposit of €500.00 having deducted €158.90 in
damage to the dwelling in excess of ordinary wear and tear and having deducted
€812.36 in rent arrears together with damages of €900.00 for the consequences of
unlawfully terminating the Applicant Tenant’s tenancy, in respect of the tenancy of
the above dwelling.
Subsequently the following appeal was received from the Landlord on 23 March 2016.
The grounds of the appeal are Damage in excess of normal wear and tear, Rent arrears,
Breach of tenant obligations, Unlawful termination of tenancy (Illegal eviction), Rent
arrears and overholding and Anti-social behaviour. The appeal was approved by the
Board on 24 March 2016
The RTB constituted a Tenancy Tribunal and appointed Finian Matthews, Vincent P.
Martin, Helen-Claire O’Hanlon as Tribunal members pursuant to Section 102 and 103 of
the Act and appointed Helen-Claire O’Hanlon to be the chairperson of the Tribunal (“the
Chairperson”).
On 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 26 May 2016 the Tribunal convened a hearing at Council Chamber, Sligo County
Council, County Hall, Riverside, Sligo.
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”. Both parties
confirmed that they had done so and it was confirmed that the parties had read and
understood them. The Chairperson explained the procedure which would be followed;
that the Tribunal was a formal procedure but that it would be as informal as was possible.
The Chairperson said that members of the Tribunal might ask questions of both parties
from time to time. She also stated that the parties must follow any instructions given by
the Chairperson and directed that neither party should interrupt the other when oral
testimony is being given.
The Chairperson explained that as this was the Landlords’ appeal they would be invited
to present their case first and that there would be an opportunity for cross-examination on
behalf of the Respondent Tenant. The Respondent Tenant would then be invited to
present his case, and then there would be an opportunity for cross-examination by the
Appellant Landlords. The Chairperson explained that following this, both parties would be
given an opportunity to make a final submission.
The Chairperson indicated that she would be willing to clarify any queries in relation to the
procedures either then or at any stage during the course of the Tribunal hearing.
The Chairperson stated that all evidence would be taken on Oath or Affirmation and be
recorded by the official stenographer present and she reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence. It
was explained to the parties that as a result of this Hearing, the Board would make a
Determination Order which would be issued to the parties and could be appealed to the
High Court on a point of law only pursuant to Section 123(3) of the 2004 Act. All persons
giving evidence to the Tribunal were then sworn in.
The Landlords had sought the issue of a subpoena in respect of a Ms Justina Richterova,
who had been a tenant during the tenancy in question, but who was not a party to the
application for dispute resolution. Ms Richterova had attended at the adjudication and had
given evidence. The subpoena had issued to the address provided by the Landlords,
however, she was not in attendance. The Landlords requested an adjournment of the
hearing for the purpose of attempting to secure her attendance. Having heard
submissions from both parties, this application was refused, however the Landlords were
invited to renew their application after the evidence had been heard, if they felt that they
had been prejudiced by her non attendance. At the conclusion of the hearing they
indicated that they were satisfied that all relevant evidence had been put before the
Tribunal in her absence and did not seek to have the matter adjourned to a further day.
5. Submissions of the Parties:
The Appellant Landlords’ Case:
The Evidence of Gerard Clarke
Gerard Clarke was acting as Agent for the Landlords in respect of the tenancy. In
November 2015 he said he had a meeting with the Landlords, who were the sons-in-law
of the late owners of the dwelling. They indicated that they wished to sell the property. He
outlined to them that it would be better to attempt to sell with vacant possession and that
the Tenants would need to be given 112 days notice. On their instructions he attended at
the dwelling on the 27th of November, 2015 in order to serve a Notice of Termination.
There was no answer so he rang the Respondent Tenant. He explained that he intended
to serve the notice and told him that it was for the purpose of sale. He later received an
email from the Respondent stating that he did not accept the Landlords genuinely
intended to sell the dwelling. Mr Clarke claimed that he emailed the Respondent back on
the 27th of November to say that he had instructions to sell and he sent a Notice of
Termination dated the 1st of December 2015 by registered post. The Notice gave a
termination date of the 23rd of March 2016 and stated that the reason for terminating the
tenancy was that “the Reps of the late Kathleen Kilfeather have informed the agent that
they are going to be putting the property on the market for sale”.
He outlined in his evidence that although he had no formal instructions at that time to sell,
the intention of the Landlords was that once the tenancy was concluded they would be
hoping to put the dwelling on the market. In response to questions from the Tribunal he
outlined that since the dwelling had been vacated on the 19th of January 2016 it had not
been put on the market yet. He said that it was still vacant and that he understood this
was because there was a family interest of some sort.
He stated that although the Respondent had said in correspondence that he would
continue to pay rent, he noted that the rent which was due on the 30th of November and
again on the 30th of December was not paid. He had written to the tenants requesting
that the arrears of rent be paid. He denied the contention by the Respondent that he, the
agent, did not hold the deposit or that this was a valid reason to withhold the rent. In
respect of the maintenance of the dwelling during the tenancy he stated that all repairs
had been carried out promptly and that there had been extensive work done during the
course of the tenancy. He cited examples of repairs to the boiler house door, tiling, and
the plumbing. When it was put to him in cross examination by the Respondent that there
were delays in works being carried out or that works were substandard, he disagreed and
said that he had always tried to arrange for a quick turnaround. He denied having been
notified at all that there was a crack in the front door some months before the end of the
tenancy and disagreed with the Respondent’s evidence that he had told them that if the
door still closed and locked it was only cosmetic and did not need to be repaired.
He claimed that he had been given to understand that the tenants had agreed to move
out in January but that he had not sanctioned the use of the deposit for the last month’s
rent. He gave evidence that on the occasion of the changing of the locks he had not been
involved in the matter in any way.
The Evidence of Ray O’Donnell and David Kivlehan:
The Appellant Landlords outlined in their evidence that they were married to the two
daughters of the deceased owners of the dwelling. They intended to put the dwelling on
the market and had so instructed the Agent towards the end of November 2015. They
had been advised that it would be better to sell the property as a vacant property. They
agreed that the dwelling remained vacant since the tenancy had terminated on the 19th of
January 2016 but stated that this was because the probate had yet to be granted. The
Notice of Termination was served on their instructions on the 1st of December 2015 and
gave a termination date of the 23rd of March 2016. They stated that they were aware that
the Respondent was disputing the notice and had indicated that he did not intend to
vacate.
The Landlords claimed that they had become aware on the 15th of January 2016 that the
Respondent was removing his belongings from the dwelling and as there were rent
arrears due at that stage they felt he might vacate without paying those arrears. They
gave evidence that on the 18th of January 2016 they had passed the dwelling and noted
that the outer front door was ajar. They accepted in their evidence that there was an inner
door which was locked but said that it was a glass door and was not secure. They had no
key to lock the outer door and were concerned that the property was therefore unsecured.
They said that they accessed the dwelling with their key to the inner door and it appeared
to them that the property had been vacated. In an effort to secure their property they said
that they arranged for a locksmith to attend to change the lock on the outer door and they
informed the Agent that they were doing this. They arranged for texts to be sent to the
two tenants to inform them that this was going to be done. They were in contact with the
other tenant who, they said, gave them to understand that the Respondent had gone to
Donegal. They stated that they understood that he had departed permanently. They
stated they had noticed the crack on the outer door on that date.
The following day, the 19th of January 2016, they attended at the property and noticed
that a glass panel beside the outer front door had been smashed. They stated that they
were extremely concerned at this and contacted the Gardaí to report an incident of a
criminal nature. They accessed the property and noted that there were still belongings in
the dwelling and that it appeared that someone was packing up to leave, but that it was
largely cleared out, with no sheets on the bed and the wardrobes and fridge empty. Some
time later the Respondent Tenant returned to the property and told them that he had
broken the window in order to gain access. They gave evidence that he was aggressive
and agitated and was demanding entry. They accepted in cross examination by the
Respondent that they had not wished to allow him back into the dwelling and that he had
said that he was entitled to come in. They called the Gardaí to report this turn of events.
The Gardaí attended at the dwelling and, although they said they were not involved in this
incident and did not know the details of what had occurred, spoke to the Respondent and
ultimately removed him to the Garda station in handcuffs. They gave evidence that the
Respondent had been told by the Gardaí to take anything he needed. They disputed that
the Respondent had been denied access to essential items such as medication and said
he could have taken anything he needed upon the Garda’s advice. They gave evidence
that they had outlined to the Gardaí that there were items missing from the dwelling, such
as chairs and crockery.
They gave evidence that at that stage they would not have been happy to allow the
Appellant re-entry to the dwelling as they were deeply concerned at the damage he had
allegedly caused to the dwelling, which was unnecessary. They stated that they had
facilitated access to the dwelling by the other tenant who had already removed all her
belongings, save for a bicycle. They claimed that they afforded the Respondent an
opportunity to remove his belongings on the 23rd of January and he had taken some of
his belongings but had left a large amount of property behind. They claimed that they
bagged those items carefully and stored them and wrote to him at the address that he
had provided but that the letter had come back “not known at this address”.
The Landlords absolutely rejected any suggestion that they had used the Gardaí to
terminate the tenancy and stated that they did not know the gardai who attended at the
dwelling. They claimed that they were entitled to terminate the tenancy for the purpose of
sale and that there was a legitimate reason why it had not been put on the market since
the 19th of January 2016 in that the probate had yet to be granted. They claimed that the
Respondent was not entitled to damages for unlawful termination of his tenancy. They
claimed they were entitled to rent arrears of approximately €750, damage to the window
of €159 and €1,059 for the replacement of the front door. They accepted that the door
had not yet been replaced. The Appellants acknowledged they retain the Respondent’s
deposit of €500 and claim that they are entitled to retain same.
The Respondent Tenant’s Case:
The Respondent Tenant gave evidence that he had grave doubts at the time that he
received the Notice of Termination as to whether the Respondents genuinely intended to
sell the dwelling. He had ultimately accepted the inevitability of the end of his tenancy
however, and had made preparations to vacate prior to the termination date. He said that
he had been particularly concerned that the security deposit had not been transferred to
the agent at the time he had taken over management of the tenancy. It was because of
these concerns that he had withheld rent for the final period of the tenancy. He gave
evidence that he was in the process of packing up his belongings and had arranged for
someone with a van to move them on the 20th of January 2016. However, he had been
away until the 18th of January and when he returned he had discovered that he was
locked out and the lock had been changed on the outer door. He said that it was late at
night when he had arrived at the dwelling, he had no phone credit and it was too late to
contact the agent or anyone else to gain access to the dwelling so he felt he had to break
a relatively small window to get in the front door. He accepted that he had caused this
damage but said that it was a situation of the Appellants’ creation and that it would have
been unnecessary had they honoured the tenancy agreement. He claimed that he was
still entitled to reside in the dwelling and enjoy peaceful occupation.
The Respondent claimed that when he came to the dwelling on the 19th and discovered
the Landlords there, he had explained that he had broken the window and that it was only
to gain access to his home. He had also notified the Gardaí that he had been the one
who broke the window. He had not finished moving out. He said that he was informed by
the Appellants that he would not be permitted to re-enter because there were rent
arrears. He claimed that it was only because of the assertions of the Landlords and their
wives to the Gardaí that he had caused criminal damage and unlawfully removed items
from the dwelling that he was taken away in handcuffs. He gave evidence that he had
found it extremely distressing to be taken to the Garda station and detained as a
consequence of legitimate steps he had taken to gain access to his home. He stated that
he had informed the Gardaí that he was entitled to continue in occupation of the dwelling.
Once he had been released from Garda detention he gave evidence that he had
contacted the Landlords to retrieve his belongings and this had only been facilitated to a
minimal extent, and in circumstances which were inconvenient. He claimed that he had
arranged for the removal of his belongings with a van on the 20th of January 2016 but
that this had had fallen through as a result of his detention. As a result, he claimed that he
was unable to remove everything when he was given access on the 23rd of January
2016.
The Respondent Tenant submitted that the experience had been extremely upsetting and
inconvenient and he claimed that the actions of the Appellant Landlords had been
unlawful, firstly in purporting to terminate his tenancy for the purpose of sale when there
was no transaction contemplated, and secondly in excluding him from the dwelling and
refusing to allow his reinstatement after the events on the 19th of January 2016.
In relation to the claims of the Appellant Landlords that he had caused damage in excess
of normal wear and tear, he disputed responsibility for all but the broken window. He
claimed that he had only broken the window as a result of a situation which was of the
Landlords’ devising. The damage to the front door had occurred as a result of the actions
of another individual during the tenancy and he had notified the agent of the damage and
had been reassured that as the damage was only cosmetic and did not affect the working
of the door, that nothing need be done about it. He said that items which were supposedly
missing from the dwelling, namely crockery and chairs, had been carefully stored within
the dwelling.
6. Matters Agreed Between the Parties
(i) The tenancy commenced on the 1st of April 2012.
(ii) The tenancy ended on the 19th of January 2016.
(iii) The monthly rent was €500.
(iv) A security deposit of €500 was paid by the Respondent Tenant and is retained in full
by the Appellant Landlords.
(v) Rent was payable on the last day of each month and no rent was paid on either the
30th of November 2015 or the 31st of December 2015.
7. Findings and Reasons:
Finding No. 1
The Notice of Termination served on behalf of the Appellant Landlords upon the
Respondent Tenant on the 1st of December 2015 is invalid.
Reasons:
The Respondent Tenant was in continuous occupation of the dwelling for a period in
excess of six months. A tenant who has been in occupation of a residential dwelling for a
continuous period of 6 months enjoys the benefit of protection as outlined in Part 4 of the
Residential Tenancies Act 2004 (as amended), primarily the right to continue in
possession as tenant for the period of four years from the commencement of the tenancy,
or until the expiration of a period of notice, whichever is the later, provided he or she
complies with the conditions of the tenancy. A tenancy continued by virtue of the
provisions of section 28 after the initial period of six months, is described in section 29 as
a “Part 4 Tenancy”, and a tenant with such a tenancy may remain in possession unless
the tenancy is lawfully determined in accordance with the requirements of Chapter 3 of
the Act.
Section 34 allows a landlord to terminate a Part 4 tenancy on one or more of the grounds
specified in the Table to that section, if a Notice of Termination giving the required period
of notice is served by the landlord in respect of the tenancy and that Notice of
Termination cites as the reason for the termination the ground or grounds concerned. The
third ground is that:
The landlord intends, within 3 months after the termination of the tenancy under this
section, to enter into an enforceable agreement for the transfer to another, for full
consideration, of the whole of his or her interest in the dwelling or the property containing
the dwelling.
This is the ground relevant to the within dispute.
Section 62 of the Act deals with notice periods and necessary procedural requirements
applicable to Notices of Termination. In order to be valid, a Notice of Termination must
comply with s.62 of the Act, namely that it must: be in writing; be signed by the landlord or
his or her authorised agent; specify the date of service of it; be in such form (if any) as
may be prescribed; if the duration of the tenancy is a period of more than 6 months, state
the reason for the termination; specify the termination date, specify that the tenant has
the whole of the 24 hours of the termination date to vacate possession; and state that any
issue as to the validity of the notice or the right of the landlord to serve it must be referred
to the Board within 28 days from the date of receipt of it.
In the Notice of Termination dated 1st December 2015, the following was stated:
“the Reps of the late Kathleen Kilfeather have informed the agent that they are going to
be putting the property on the market for sale”.
The Tribunal refers to and relies upon the very recent decision of the High Court in the
case of Hennessy -v- The Private Residential Tenancies Board, [2015 No. 229 MCA],
unreported High Court, Baker J., 5 April 2016.
There the High Court found that the requirements of section 62 were mandatory in nature
and that the reason for terminating a Part 4 Tenancy had to be stated in a Notice of
Termination in order for it to be valid. The High Court also found that in respect of a Part 4
Tenancy, the requirements of section 62 were in addition to those contained in section 34
of the Act.
At paragraph 37 of the judgment, Baker J. stated that:
“A landlord may not seek to recover possession of premises the subject matter of a Part 4
tenancy merely on account of a general intention on his part to sell the premises, and the
intention must be to sell within three months and not merely, for example, to place the
property on the market to test the market or to place the property on the market and wait
a period of time until the appropriate price is achieved. The intention must be one to enter
into a binding contract within three months of the termination of the tenancy, and that
intention must exist before a notice of termination can validly be served…I would not go
so far as to say that the intention was that a notice of termination could be served only in
the context of an identified sale, but the legislation in my view envisages more that (sic) a
mere intention to sell, and requires a landlord to have as a matter of fact, and to sate
(sic), that he intends to bind himself to a sale within three months of termination.”
At paragraph 38 of the judgment Baker J. continued as follows:
”Thus, I consider that the operative reason for termination on account of ground 3 in the
table to s.34 is not that the landlord intends to sell the premises, but that he intends to
bind himself to a contract for sale within three months of termination. There is a different
emphasis and meaning between the two statements of intent, and that difference is
relevant and central to the protection afforded by the legislation. An intention to sell
simpliciter is not sufficient to terminate.”
The Tribunal is satisfied, particularly having regard to the evidence of the Landlords and
their Agent, that they were not in a position to sell the dwelling within three months of the
end of the tenancy and in fact it remains vacant to this day. The reason cited in the Notice
of Termination dated 1st of December 2015 was that “the Reps of the late Kathleen
Kilfeather have informed the agent that they are going to be putting the property on the
market for sale”. In circumstances where the Landlords gave evidence that they were not
even in a position to put the dwelling on the market for sale at the date of the Tribunal
hearing, given that the probate remains to be finalised, they could not have been said to
have met the test outlined in the Hennessy decision set out above.
The Notice of Termination is invalidated by reason of the fact that it does not record on its
face that it was the Respondent Landlords’ intention to enter into an enforceable
agreement for sale within 3 months of termination.
Finding No. 2
The termination of the Respondent Tenant’s tenancy on the 19th of January 2016 was
unlawful.
Reasons:
The Appellant Landlords accepted in their evidence that they had not received any
positive undertaking from the Respondent that he would vacate the dwelling prior to the
19th of January. The Tribunal has regard to the concerns raised by the Landlords that
they felt the dwelling was not secure on the 18th of January and that they arranged for
the locks to be changed for this purpose. However, in circumstances where the tenancy
was ongoing, this was not the appropriate course of action. It would have been open to
the Landlords, through their agent at first instance, to make contact with the Tenants and
request that they come back and lock the front door. No adequate explanation was
offered for why this was not done. The Landlords were not entitled to simply change the
locks and notify the Tenants retrospectively that this step had been taken. Pursuant to
s.12(1)(a) of the Act a Landlord is obliged to allow a Tenant peaceful and exclusive
occupation of a dwelling. Notwithstanding the concerns which they articulated, they
breached their obligations in this regard in unilaterally changing the locks on the 18th of
January 2016. In addition to this, the Landlords gave evidence that once the window had
been broken and the Respondent Tenant had returned, they did not intend to grant him
occupancy once more, and in fact did not permit him reinstatement to the dwelling. The
actions of An Garda Síochána in the events of the 19th of January 2016 appeared to the
Tribunal to be unexplained, given that, in all the circumstances it should have been
apparent that the dispute between the Appellants and the Respondent was of a civil
nature. However, the role of An Garda Síochána in this matter is outside the remit of the
Tribunal. In all the circumstances, the Tribunal finds that, in contravention of the
provisions of sub-section (1) of section 58 of the Act, the tenancy was terminated by
means of a process other than one provided for under the Act, that the Respondent was
accordingly unlawfully deprived of his tenancy, and that the Respondent is entitled to
damages in the sum of €2,000 for that breach of landlord obligations. This sum is arrived
at in the context of a maximum jurisdiction of €20,000. The Tribunal holds that the breach
was at the lower-mid range of the scale in that the tenancy was terminated for an invalid
reason and the Appellants did not permit the Respondent reinstatement on request.
However, the assessment is reduced to the lower end of the scale at €2,000, having
regard to the degree of distress, loss, expense and inconvenience incurred by the
Respondent Tenant and taking account of the circumstances where the Respondent
Tenant had formed the intention and was in the process of moving out and where the
bona fides of the Appellants are accepted in that they actually do intend to place the
dwelling on the market and have been prevented thus far by delays in the probate.
Finding No. 3
The Respondent Tenant breached his obligations in failing to pay rent as it fell due.
Reasons:
S.16(a) of the Residential Tenancies Act 2004 provides that a tenant of a dwelling shall
pay to the landlord the rent provided for under the tenancy concerned on the date it falls
due for payment. It was agreed by all parties in their oral evidence that the rent had not
been paid on the 30th of November 2015 (to cover the month of December 2015) nor on
the 30th of December 2015. Rent was payable for the month of December 2015 in the
sum of €500.00 and also €312.33 for the 19 days for the period from 1st of January 2016
until the tenancy was terminated on the 19th of January 2016. For the avoidance of doubt
the daily rate is calculated as follows: Rent per month = €500, multiplied by 12 = €6,000
per annum, divided by 365 = €16.44 per day. The Tribunal does not accept that the
Respondent’s concerns about the deposit were legitimate reasons to withhold the rent.
The Respondent failed to pay a total of €812.33 during the course of his tenancy and is
liable for that amount in rent arrears.
Finding No. 4
The Respondent Tenant caused damage to the dwelling in excess of normal wear and
tear.
Reasons:
Pursuant to s.16(f) of the Act a Tenant is obliged not to do any act which that would
cause deterioration to a dwelling which exceeds normal wear and tear, having regard to
the nature and duration of the tenancy and the extent of occupation. This was a tenancy
of almost four years duration, and although it is accepted that general maintenance was
carried out to the dwelling during the course of that time, a Landlord must anticipate that
some maintenance expenses might be incurred during such a period. The evidence of the
Respondent Tenant is accepted that there was some damage caused to the front door of
the dwelling by another individual during the course of the tenancy and that he notified
the agent of this, as was his obligation pursuant to s.16(d) of the Act. There was
insufficient evidence before the Tribunal to suggest that this damage was attributable to
any action of the Tenant. In the circumstances, the Tribunal finds that the only damage to
the dwelling for which the Respondent Tenant is liable is the broken window, which cost
€158.90 to put right. The Tribunal does not accept that this expense is the liability of the
Landlords, in circumstances where it is not accepted on the evidence that the
Respondent took adequate steps to regain access once the locks had been changed,
before breaking the window to get in. It was certainly open to him to make efforts to
contact the Agent or the Landlords themselves to get a key, and it was accepted on the
evidence that he had contact details for both those parties.
In respect of complaints about the cleanliness and general tidiness of the dwelling, any
such remedial works, or steps associated with packing and storing of the Respondent’s
belongings arose as a consequence of the Appellants’ unlawful exclusion of the
Respondent from the dwelling. In circumstances where no opportunity was offered to him
to carry out a proper clearout of the dwelling he cannot be faulted for any such works
which remained to be done.
Finding No. 5
The Appellant Landlords are entitled to retain the deposit of €500.
Reasons:
Pursuant to s.12(1)(d) of the Act, a landlord is obliged to refund a security deposit on
gaining vacant possession of a dwelling, less any amounts properly withheld in
accordance with the provisions of the Act. A landlord is entitled to retain all or part of a
security deposit where there are rent arrears at the end of a tenancy. The parties agreed
that a security deposit of €500 was paid by the Respondent and this has not been
returned to him. As the rent arrears owed by the Respondent exceed the deposit, the
Appellants are entitled to retain same and to recover the balance of the arrears in the
sum of €312.33 from the Respondent, although as set out heretofore, this sum is offset
against an award of damages payable to the Respondent.
8. Determination:
Tribunal Reference TR0316-001684
In the matter of Ray O’Donnell, David Kivlehan (Landlord) and Stephen Brown
(Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The Notice of Termination dated 1st December 2015 served by the Appellant
Landlords on the Respondent Tenant, in respect of the tenancy of the dwelling at 12
St. Joachim’s Terrace, Sligo, is invalid;
2. The Appellant Landlords shall pay the total sum of €1,528.77 to the Respondent
Tenant, within fourteen days of the date of issue of the Determination Order, being
€2,000.00 damages for breach of landlord obligations in respect of unlawful
termination of the tenancy, less the sum of €812.33 in rent arrears and €158.90 in
respect of damage in excess of normal wear and tear, having deducted the security
deposit of €500.00 in respect of the tenancy the above dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
30 June 2016.
Signed:
Helen-Claire O’Hanlon Chairperson
For and on behalf of the Tribunal.

 

O’Donnell v Reilly

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1214-000950 / Case Ref No: 0914-14027
Appellant Landlord: Des O’Donnell
Respondent Tenant: Michael Reilly
Address of Rented Dwelling: 19 Lios Mor, Newport, Co. Mayo
Tribunal: Deirdre Bignell (Chairperson)
Healy Hynes, John Tiernan
Venue: Council Chamber, Sligo County Council, County Hall, Riverside, Co.Sligo
Date & time of Hearing: 26 May 2015 at 10:30
Attendees:
Des O’Donnell, Appellant Landlord
Marie O’Donnell, Witness/Spouse of Appellant Landlord
Suzanne Brady, Appellant Landlord’s Agent
Michael Brady, Witness/Spouse of Appellant Landlord’s Agent
Michael Reilly, Respondent Tenant
Winnie Reilly, Witness/Spouse of Respondent Tenant
Catherine McDarby, Respondent Tenant’s Representative
In Attendance:
Gwen Malone Stenographers
1. Background:
On 4/09/2014 the Appellant 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 29/10/2014. The Adjudicator determined the following:
1. The Notices of Termination served on the 18 February 2014, 7 March 2014, and 17 June 2014 and 31 July 2014 by the Applicant Landlord on the Respondent Tenant in respect of the tenancy of the dwelling at 19 Lios Mor, Newport, Co. Mayo are invalid.
2. The Applicant Landlord shall pay the total sum of €265 to the Respondent Tenant within 28 days of the date of issue of the Order being damages for the Applicant Landlord’s breach of his obligations under the Act in the sum of €1,800 less rent
arrears in the sum of €1535 to cover the period up to and including the 31st October 2014 in respect of the above dwelling.
3. The Applicant Landlord shall pay damages from 1 November 2014 at the rate of €30 per day, unless lawfully varied, until such time as both the electricity and water supply to the dwelling is restored, unless restored before 1 November 2014.
4. The Respondent Tenant shall pay any further rent outstanding from 1 November2014 at the rate of €450 per month or proportional part thereof at the rate of €14.79 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 the tenancy is validly terminated.
5. The payment of rent under Item no. 4 is to be off-set against any damages payable under Item no.3.
6. The Respondent Tenant shall furnish a copy of the key to the safety lock to the Applicant Landlord or his agent within 7 days of the issue of the Order.
7. The Applicant Landlord shall refund the entire of the security deposit of €450 to the Respondent Tenant, on gaining vacant possession of the above dwelling, less any amounts properly withheld in accordance with the provisions of the Act.
Subsequently a valid appeal was received from the Appellant Landlord on 02/12/2014. The grounds of the appeal were anti-social behaviour and rent arrears. The appeal was approved by the Board on 15/12/2014.
The PRTB constituted a Tenancy Tribunal and appointed Deirdre Bignell, Healy Hynes, and John Tiernan as Tribunal members,pursuant to Section 102 and 103 of the Act and appointed Deirdre Bignell to be the chairperson of the Tribunal (“the Chairperson”).
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 26/05/2015 the Tribunal convened a hearing at 10.30 a.m. at the Council Chamber, Sligo County Council, Co Sligo.
2. Documents Submitted Prior to the Hearing Included:
PRTB File
3. Documents Submitted at the Hearing Included:
By Appellant: An additional case file (68 pages) had been submitted to the PRTB five days prior to the hearing.
The Respondent agreed to the additional file being entered into evidence.
By Respondent: Call transcript request from Electric Ireland dated 20 May 2015, pertaining to a call dated 28 August 2014.
Handwritten note dated 5 November 2014 signed by Kevin Hastings.
The Appellant agreed to the entry of the above documentation into evidence.
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify the capacity in which they were attending the Tribunal. The Chairperson confirmed with the parties that they had received the relevant papers from the PRTB in relation to the case and that they had received and understood the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed: that the Tribunal was a formal procedure but that it would be held in as informal a manner as possible; that in normal circumstances, the person who appealed (the Landlord in this case) 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 following this, the parties would be given an opportunity to make a final submission.
The Chairperson said that she would be happy to clarify any queries in relation to the procedures either then or at any stage over the course of the Tribunal hearing.
The Chairperson stressed that all evidence would be taken on oath or affirmation and recorded by the official stenographer present and that based on that recording a transcript could be made available to the Tribunal if necessary to assist it in preparing its report on the dispute, or to the parties for a fee.
The Chairperson reminded the attending parties that it was an offence for anyone giving evidence to refuse to take the Oath or Affirmation, to refuse to produce any document in his or her control required by the Tribunal, to refuse to answer any question put by the Tribunal, or to knowingly provide false or misleading statements or information to the Tribunal. The Chairperson informed the parties that the above offences were punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson said that members of the Tribunal would ask questions from time to time to assist in clarifying the issues in dispute between the parties, and informed them that she would clarify any queries raised at the outset, or in the course of, the hearing. She also stated that she would consider an application made at any stage of the hearing seeking a short adjournment for the purpose of allowing the parties to negotiate on a without prejudice basis, a settlement of the dispute.
The Chairperson also reminded the parties that as a result of the hearing, the Board would make a Determination Order which would be issued to the both parties to the dispute and could be appealed to the High Court on a point of law only [reference section 123(3) of the 2004 Act].
The parties were then sworn in and the hearing commenced. The hearing was adjourned for one hour between 1:30 p.m. and 2:30 p.m. for lunch, and again for approximately ten minutes at 3:05 p.m., to permit the parties to review the documentation submitted by the Respondent. The hearing was again adjourned at approximately 6 p.m. to allow the parties to discuss prospects for settlement. The hearing ultimately concluded at approximately 6:30 p.m.
5. Submissions of the Parties:
The Appellant Landlord’s case:
Evidence of Des O’Donnell (Appellant Landlord):
Fraudulent reference:
The Appellant submitted that he had let the Dwelling to the Respondent under a 12 month lease which commenced on 31 January 2014, and that the Respondent remained in occupation of the Dwelling with his wife and two young children. Although he had let the Dwelling to the Respondent in good faith, the Appellant had subsequently discovered that the Respondent had furnished a fraudulent reference to secure the tenancy.
Rent arrears and overholding:
The Appellant submitted written details of rent arrears in the total sum of €4,652 that have accumulated in respect of the tenancy to 31 May 2015.
The Appellant submitted that contracts had been exchanged for the sale of the Dwelling, a condition of which was that vacant possession would be secured by the Appellant on 18 July 2014. According to the Appellant, although the Respondent was advised of the sale of the Dwelling, and offered alternative accommodation within the complex in Apartment 8, he refused to vacate the Dwelling, and has failed to discharge a substantial amount of rent arrears.
The Appellant also submitted that the notices of termination had all been signed prior to issuing, and that the final notice dated 15 January 2015, was the primary notice upon which he sought to rely as a valid termination of the Respondent’s tenancy.
Anti-social behaviour:
The Appellant claims that numerous complaints have been furnished by neighbouring residents regarding the alleged anti-social behaviour of the Respondent, which includes allegations of sustained harassment and intimidation, abuse of the refuse service, wielding a knife in public areas, smoking within the apartment complex, drug use in the Dwelling, Gardai attendances on at least three occasions, public urination on the part of his children, creating loud noise, and allowing others who frequented the dwelling to behave in a way that was anti-social by creating loud noise late at night.
The Appellant submitted that a number of neighbouring occupants had vacated the complex due to the behaviour of the Respondent, causing the Appellant a loss of rental income. The Appellant gave evidence that as a result of the anti-social behaviour, he had installed security cameras in the apartment complex and adduced invoices in the value of €1,008.37 in respect of same.
Damage in excess of normal wear and tear:
The Appellant claims that the Respondent changed the entrance lock to the Dwelling shortly after taking up possession, and has refused to supply a key to the Appellant, notwithstanding a series of written requests. The Appellant also claims that the Respondent caused significant damage to the post box.
Standard and maintenance / Peaceful and exclusive occupation:
The Appellant submitted that any issues with the supply of electricity to the Dwelling appear to have resulted from the failure by the Respondent to discharge his bills. The Appellant further denies that he has interfered with the water supply to the Dwelling,
noting that the water pump requires a supply of electricity in order to function satisfactorily.
The Appellant denied any involvement in the telephone call of 28 August 2014 to Electric Ireland, and alleged that someone had ostensibly sought to falsely identify himself as the Appellant in the context of the call.
Other:
According to the Appellant, his witness, Ms Susanne Brady, dealt with the Respondent in the day to day management of the tenancy in general, and the Appellant himself had little input into issues arising.
Evidence of Susanne Brady (Agent/Witness for the Appellant Landlord):
Ms Brady confirmed that she was engaged on behalf of the Appellant Landlord and his wife as their agent in respect of the letting of the Dwelling.
Anti-social behaviour:
Ms Brady claimed to have witnessed the Respondent’s children urinating behind the refuse bins on one occasion, and had spoken with the Respondent’s wife about the incident. Ms Brady acknowledged that this appeared to have resolved the issue. Ms Brady also gave evidence that on one occasion she had witnessed the Respondent placing seventeen bags of rubbish in the refuse bins supplied. According to Ms Brady, she also witnessed CCTV footage pertaining to 27 September 2014, in which she saw the Respondent, accompanied by other men, carrying a nail bar through the complex.
Ms Brady claimed that she had witnessed CCTV footage of the Respondent smoking in the public areas of the complex, despite her having informed the Respondent at the outset of his tenancy that smoking was not permitted.
Ms Brady further submitted that on a number of occasions the Respondent and his wife had been verbally abusive and intimidating towards her, shouting at her and threatening her, to the extent that she had actively avoided the possibility of encountering the Respondent for fear of being alone with them.
Rent arrears and overholding:
Ms Brady claimed that at the start of the tenancy, she would call to the Dwelling to collect the rent, but that due to the intimidating behaviour of the Respondent and his wife on a series of occasions, Ms Brady had become fearful and would not attend at the complex unless she was either accompanied, or due to meet someone there. Ms Brady submitted that she had not called to the Dwelling since 18 November 2014, but noted that the bank account details into which rent should be transferred were contained in the tenancy agreement between the parties.
Ms Brady gave evidence that notwithstanding the difficulties she encountered with the Respondent, he and his family were offered alternative accommodation in Apartment 8 in order to secure vacant possession of the Dwelling. She said that although the Respondent initially intimated that he was amenable to the move, and Ms Brady arranged amongst other things for the lock of the Dwelling to be transferred to the alternative apartment, the Respondent had changed his mind at the last minute, without sufficient reason.
Supply of electricity and water:
Ms Brady claimed that she did not usually involve herself in issues arising between electricity suppliers and tenants of the complex, but that she would have spoken with the Appellant’s wife about the issues the Respondent was having with the electricity supply. Ms Brady also submitted that upon receipt of complaints from the Respondent regarding the electricity supply, she had contacted Electric Ireland, which, while informing her that they could not discuss details with her, confirmed that there was an issue with bill payment.
With regard to the Respondent’s allegation that the electricity supply had been interfered with by the removal of a fuse in the meter room, Ms Brady stated that it was her understanding that the ESB has sole control over the removal of fuses in the manner alleged by the Respondent, and disputed that she had any knowledge of such removal occurring.
Ms Brady submitted that upon receiving complaints from the Respondent regarding the water supply, she engaged a plumber and accompanied him to the meter room where she witnessed him removing a pipe to check the supply, and that he duly confirmed that water was running as normal to the Dwelling. According to Ms Brady, she engaged the plumber on three more occasions in the subsequent weeks to check the supply, and on each occasion he confirmed his initial position.
Excessive occupation:
Ms Brady also claimed that the Respondent had permitted other persons to reside at the Dwelling, without permission, for some months, and that a Probation Officer had been given the address of the Dwelling for an associate of the Respondent, without the permission of the Appellant.
Evidence of Michael Brady (Witness for the Appellant Landlord):
Anti-social behaviour:
Mr Brady submitted that he was engaged by the Appellant to undertake maintenance work in the apartment complex from time to time. Mr Brady claimed he was present on one occasion on 22 September 2014, when the Respondent had drawn his vehicle alongside Mr Brady’s car outside a supermarket near the Dwelling, and had been abusive and intimidating to his wife, Ms Brady, who was also in the car.
Mr Brady claimed that due to the intimidation suffered by his wife, he was required to accompany her when she needed to attend the complex, to the extent that he felt like her “minder”. Mr Brady also submitted that he had witnessed the Respondent smoking in public areas of the complex, and had viewed CCTV footage of the Respondent carrying a nail bar through the complex.
Damage in excess of normal wear and tear:
Mr Brady submitted that he had inspected a socket located in the public area of the complex nearby the Dwelling, which appeared to have been tampered with, as bare wires were exposed.
Mr Brady also confirmed that at the request of Ms Brady, he had removed the Respondent’s lock from the entrance to the Dwelling, and had transferred it to the then proposed alternative residence when the Respondent was understood to have agreed to the move. Mr Brady recalled that a copy of the key to the Respondent’s lock had not been furnished to the Appellant or to any of his agents.
Evidence of Marie O’Donnell (Spouse of and Witness for the Appellant Landlord):
Standard and maintenance / Peaceful and exclusive occupation:
Ms O’Donnell submitted that on 28 August 2014 she had contacted Electric Ireland upon becoming aware of the possibility of the electricity supply to the Dwelling being cut off due to the Respondent’s arrears, and had requested that the supply be placed in the name of the Management Company. Ms O’Donnell averred that on no occasion had she requested that the electricity supply to the Dwelling be disconnected.
With regard to the water supply, Ms O’Donnell claimed that upon being informed by Ms Brady that issues had arisen, she instructed Ms Brady to engage a plumber, and that this had been duly done.
The Respondent Tenant’s Case
Evidence of Michael Reilly (Respondent Tenant):
Fraudulent reference:
The Respondent acknowledged that a fraudulent reference had been submitted to the Appellant in order to secure possession of the Dwelling at the outset of the tenancy, as he had found it difficult to obtain accommodation due to the reaction of prospective landlords to his wife being a member of the Travelling Community.
Rent arrears and overholding:
The Respondent accepted the evidence in relation to the level of arrears in the sum of €4,652 as stated to be outstanding, and acknowledged that Ms Brady had been very helpful with regard to their difficulties with rent, having upon occasion supplemented their rent payments with her own funds. The Respondent claimed that he had not paid rent for some previous months as he had not seen Ms Brady, but that he was willing to immediately pay the sum of €1,000 towards the arrears, and discharge the balance over time. The Respondent submitted that his arrears for electricity payments currently total approximately €1900.
Anti-social behaviour:
The Respondent confirmed that when the Dwelling was searched by the Gardai a quantity of cannabis resin was found but explained that it had been for his own use. The Respondent denied that he had engaged in anti-social behaviour with regard to drug use, claiming that he had not smoked cannabis since having been charged with possession of cannabis in early 2014.
Regarding the Appellant’s accusations of abuse of the refuse service, the Respondent noted that he had not been forewarned of there being a limit on the number of bags which may be placed in the communal bin, and was unaware of any such restrictions currently, or historically, in place. The Respondent further noted in this regard, that the maximum number of bin bags disposed of on any one occasion did not exceed eight, and claimed that upon occasion, Ms Brady had assisted him in dumping refuse by holding the lid of the bin open for him. The Respondent also denied that he had ever raised his voice to Ms Brady, and said that he had himself received threatening phone calls from an unknown individual, whom he suspected was associated with the Appellant.
Damage in excess of normal wear and tear:
The Respondent acknowledged that he had changed the locking system to the entrance door without permission, but suggested that in permitting the lock which the Respondent had installed at the entrance to the Dwelling, to be transferred to Apartment 8, the Appellant had acquiesced in the Respondent’s decision to change the lock. In this regard, the Respondent claimed that although his family were initially amenable to moving to Apartment 8, they were ultimately given only 24 hours to move, and were unable to do so in that time frame.
The Respondent also submitted that he had changed the lock to the Dwelling shortly after taking possession due to his concerns for the safety and welfare of himself and his family.
The Respondent denied having tampered with the electrical socket at issue, and although he admitted that he had caused damage to the post box, he claimed to have subsequently repaired the damage himself.
With regard to his having been seen carrying a nail bar through the complex, the Respondent stated that he had carried it while accompanying two handymen into the complex to ascertain if the plumbing issues could be addressed.
Standard and maintenance / Peaceful and exclusive occupation:
The Respondent claimed that the water supply ceased on 28 August 2014, and that he became aware that there was no electricity supply approximately one hour later, at around 9:30 a.m. The Respondent accepted that it was possible that the supply of electricity may have been interrupted prior to the water supply being affected.
The Respondent submitted that in preparation for the hearing of the appeal, he had requested Electric Ireland to provide transcripts of all telephone conversations pertaining to the Dwelling since 31 January 2014. The Respondent confirmed, however, that he had not been furnished with any evidence from Electric Ireland of a call having been made by Ms O’Donnell on 28 August 2014. The Respondent acknowledged that he had himself called Electric Ireland on the morning of 28 August 2014, which call was referred to in the transcript of a later phone call on the same day, a copy of which the Respondent submitted into evidence.
According to the Respondent, following the disconnection of the electricity supply on 28 August 2014, he had entered into an agreement with Electric Ireland to discharge the arrears at the rate of €30 per week, on foot of which the electricity was reconnected on 1 September 2014. The supply was again disconnected on or around 24 September 2014. He said that he had not complied with the payment schedule in respect of the outstanding electricity repairs. According to the Respondent, due to the interference with the supplies of water and electricity, his family had to vacate the Dwelling and stay with family in Castlebar, a two hour drive from his children’s school. The Respondent claimed that due to the interference, he parked a trailer in the car park of the neighbouring hotel, which he and his wife would use as a kitchen and resting area while waiting to collect the children from school, and that they would obtain water from the occupants of neighbouring apartments. According to the Respondent, the water and electricity supplies were reinstated on 18 November 2014, after he reached an agreement with the hotel manager, Ms Michelle Murphy, to move the trailer.
The Respondent Tenant stated that he engaged an electrician, Kevin Hastings, to attend at the Dwelling on 5 November 2014. According to the statement of Mr Hastings, an
inspection of the fuse board pertaining to the Dwelling revealed that there was no power going to the Dwelling from the meter room.
The Respondent gave evidence that he was without hot water in the dwelling for a period of approximately two weeks in early April 2015. This, he said, caused hardship for himself and his family. He conceded that when this situation was brought to the attention of the Appellant on 8 April 2015 it was dealt with on 10 April 2015.
Excessive occupation:
With regard to the claim by Ms Brady that the Respondent had permitted other persons to reside at the Dwelling, without permission, for extended periods of time, the Respondent stated that he had permitted a relative to reside there for a fortnight. He agreed that the person had provided the address of the dwelling to the Probation Service as his permanent address.
Evidence of Winnie Reilly (Witness and Spouse of the Respondent Tenant):
Anti-social behaviour:
Ms Reilly denied the allegations that she had been abusive to Ms Brady, or had participated in any anti-social behaviour.
Supply of electricity and water:
Ms Reilly agreed that the electricity and water had suddenly stopped working on 28 August 2014. She confirmed that the family had to move in to a caravan due to the electricity being turned off, and that the lack of hot water for the period in April 2015 had caused further hardship for herself and her family.
6. Matters Agreed Between the Parties
Before inviting the parties to make their submissions, the Chairperson said that the Tribunal had read the documentation in relation to the case as circulated to the parties and it appeared to the Tribunal that the following factual matters in relation to the tenancy were not in dispute between the parties:
 The Respondent has been in occupation of the dwelling since the tenancy commenced under a 12 month written agreement dated 31 January 2014.
 The rent was set at €450 per month and adjusted to €105 per week at the request of the Respondent. A deposit of €450 was paid by the Respondent.
 Net rent arrears in the amount of €4,652 are due and owing by the Respondent to 30 May 2015.
7. Findings and Reasons:
Having considered all the evidence, the Tribunal’s findings and reasons therefor, based on the balance of probabilities, are set out hereunder:
Rent arrears and overholding:
Finding:
The Tribunal finds that the Respondent Tenant is in breach of his obligations under section 16(a)(i) of the Act, and section (3) of the tenancy agreement dated 31 January 2014, to pay rent as it fell due.
Reason:
The Respondent Tenant agreed that he was in arrears of €4,652. Under sub-section (a)(i) of section 16 of the Act, a tenant must pay to the landlord the rent provided for under the tenancy concerned on the date it falls due for payment. In failing to pay his rent when it became due, the Respondent Tenant was in breach of this requirement. The Respondent is deemed to owe the sum of €4,802 to the Appellant, comprising the sum of €4,652 in actual arrears to the date of the hearing, plus the sum of €150 damages, calculated as follows:
The sum outstanding as agreed between the parties at the hearing = €4,652
The average amount that has been outstanding from 30 July 2014 to 30 May 2015 = €4,652 ÷ 2 = €2,326
The period over which the sum of €4652 has been outstanding is 10 months = 0.83 of a year
The Courts Service as of May 2015 applies an interest rate of 8% per annum on outstanding debts.
Therefore the interest that would have accrued on the monies had the rent be paid when it fell due each week can be calculated as:
= €2,326 (average amount outstanding) X 0.83 (years) X 8% (interest rate)
= €154.45, rounded to €150
Finding:
The evidence before the Tribunal contained copies of Notices of Termination served on behalf of the Appellant Landlord on the Respondent Tenant, dated 18 February 2014, 7 March 2014, 17 June 2014, 31 July 2014 and 15 January 2015. The Tribunal finds that all of the Notices of Termination were invalid.
Reason:
The tenancy commenced on 31 January 2014 under a twelve month written tenancy agreement. On 31 July 2014, being then in existence for a period of 6 months, the tenancy acquired the status of a Part 4 tenancy under the Act.
The Notices of Termination failed to comply with the requirements of section 34, and section 62(1) of the Act, as follows:
The notices dated 18 February 2014, 7 March 2014, and 17 June 2014, failed to comply with section 62(1)(f)(i) and (ii) (in that they failed to specify the termination date or indicate that the Respondent had the whole of the 24 hours of the termination date to vacate possession). The notices also failed to comply with section 62(1)(g) in that they failed to state that any issue as to the validity of the notice or the right of the landlord to serve it, must be referred to the Board under Part 6 within 28 days from the date of receipt of it.
The notice dated 31 July 2014 failed to comply with section 62(1)(f)(i) as it failed to specify an accurate termination date calculated as from the date of service of the notice
dated 31 July 2014, and instead sought to rely upon a termination date of 17 July 2014 which pre-dated the notice of 31 July 2014.
The notice dated 15 January 2015 failed to comply with section 62(1)(f)(ii) in that it failed to indicate that the Respondent had the whole of the 24 hours of the termination date to vacate possession. The notice also failed to comply with section 62(1)(g) in that it failed to state that any issue as to the validity of the notice or the right of the landlord to serve it, must be referred to the Board under Part 6 within 28 days from the date of receipt of it.
The above notices, served as they were during the currency of the fixed term tenancy agreement, were also invalid on the grounds that they failed to comply with the limited circumstances as specified by the legislation, in which a fixed term tenancy may be terminated. Moreover, a notice served which purports to terminate a Part 4 tenancy (which, in this case, came into being on 31 July 2014), must comply with section 34, and specify a valid ground for termination, as set out in the Table contained therein. The notice of 15 January 2015 failed to comply with this provision.
Having regard to all of the surrounding circumstances, and in particular, to the offer made by the Appellant of alternative accommodation within the same complex in light of the sale of the Dwelling, no award is directed by the Tribunal in consequence of the Appellant’s breach in this regard.
Anti-social behaviour
Finding 1:
The Tribunal finds that the Respondent Tenant is in breach of his obligations under Section 16(h) and 17(1)(b) of the Act.
Reason:
Under sub-section (h) of Section 16 of the Act, a tenant is prevented from behaving within the dwelling, or in the vicinity of the dwelling in a way that is anti-social or allow other occupiers of, or visitors to, the dwelling to behave within it, or in the vicinity of it in such a way. Section 17(1)(b) describes anti-social behaviour as engaging in behaviour that causes or could cause fear, danger, injury, damage or loss to any person living, working or otherwise lawfully in the dwelling concerned or its vicinity and, without prejudice to the generality of the foregoing, includes violence, intimidation, coercion, harassment or obstruction of, or threats to, any such person.
The Tribunal is satisfied from the oral evidence of the parties that the Respondent behaved in a manner that was anti-social towards Ms Brady who was working or otherwise lawfully in the dwelling or its vicinity, and that this behaviour negatively impacted on her ability to fulfil her duties of employment. No award is directed against the Respondent in this regard however, as the legislation does not permit the making of an award in favour of a person who is not party to the dispute and Ms Brady has not brought a case under the provisions of s. 77 of the Act in her own right.
Finding 2:
With regard to the remaining allegations of anti-social behaviour on the part of the Respondent, towards neighbouring occupants, the Tribunal does not find that sufficient evidence has been submitted by the Appellant to meet the standard required.
Reason:
The Appellant failed to establish, on the balance of probabilities, that the allegations of abuse of the refuse service, smoking in public areas, excessive noise and loud music, and intimidation of neighbouring occupants, were satisfied. In this regard, the Tribunal references in particular, the submission of largely hearsay evidence by the Appellant in support of his claim, which did not permit cross-examination by the Respondent.
Damage in excess of normal wear and tear
Finding 1:
The allegations that the Respondent caused a deterioration of the condition of the Dwelling beyond normal wear and tear, contrary to section 16(f), have not been established.
Reason:
With regard to damage allegedly caused by the Respondent to an electrical socket, the Tribunal does not consider that the Appellant established on the balance of probabilities that such damage was caused by the Respondent.
Although the Tribunal accepts that the Respondent caused damage to the letterbox of the Dwelling, the evidence of the Respondent that the damage was repaired, was not satisfactorily refuted. Section 3(d) of the tenancy agreement between the parties imposes an obligation upon a tenant to repair and make good all defects for which a tenant is liable, within fourteen days of a landlord issuing the tenant with written notice to so do. No evidence was submitted by the Appellant that written notice of repairs required had been submitted to the Respondent.
In the event that it transpires at the conclusion of the tenancy, that the Respondent has committed excessive damage to the Dwelling, which has not been remedied, the Appellant may have recourse to the security deposit, or to make an application to the PRTB for dispute resolution services.
Finding 2:
The changing of the lock at the entrance to the Dwelling by the Respondent without notification to the Appellant comprises a breach of his tenancy obligations, as was the repeated failure by the Respondent to furnish the Appellant with a key to the new lock. The Tribunal awards the sum of €200 in damages to the Appellant in respect of this breach.
Reason:
A tenant is obliged pursuant to section 16(l) and section 17(1)(a) not to alter a locking system on a door giving entry to the dwelling without the written consent of the landlord. It is clear from the evidence of all parties that the Respondent changed the locking system without obtaining the permission of the Appellant, and has failed to provide a copy of a key to access the Dwelling notwithstanding repeated written requests.
Standard and maintenance / Peaceful and exclusive occupation
Finding 1:
The Appellant is not in breach of his obligation pursuant to section 12(1)(a) to allow the Respondent to enjoy peaceful and exclusive occupation of the Dwelling.
Reason:
The Tribunal accepts the Appellant’s submission that neither he nor his agents were responsible for any interference with the supply of electricity, or water, to the Dwelling. On the balance of probabilities, the Tribunal considers that any issues which may have arisen with the electricity supply were more likely to have resulted from bill payment issues, in respect of which the Appellant bears no responsibility. Insufficient evidence was submitted to demonstrate that the Appellant was responsible for the interruption in the supply of water to the Dwelling.
Finding 2:
The Appellant is not in breach of his obligations to carry out necessary repairs and maintenance to the Dwelling, with particular regard to the supply of water and electricity to the Dwelling.
Reason:
Under Section 12(1)(b)(ii) of the 2004 Act, a landlord is obliged to carry out to the interior of the dwelling all such repairs as are necessary from time to time to maintain it in the same condition as at the time of the commencement of the tenancy. The Appellant is obliged to ensure that the dwelling complies with all of the minimum standards as set out in the Housing (Standards for Rented Houses) Regulations.
Although the Tribunal accepts the evidence of the Respondent that he encountered interruptions with the water supply, the Tribunal also accepts the evidence of the Appellant that a plumber attended the Dwelling on four occasions following receipt of complaints regarding the water supply by the Respondent, and that no issues were evident on those occasions. The Tribunal considers, on the basis of the evidence submitted, that the Appellant responded promptly and sufficiently in this regard.
Excessive occupation
Finding:
The Respondent permitted an additional person(s) to reside in the Dwelling without having informed the Appellant, in breach of his obligations.
Reason:
Section 16(n) provides that a tenant shall 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. Section 3(b) of the tenancy agreement dated 31 January 2014 similarly provided that the Respondent agreed not to share possession of the Dwelling without first obtaining the Appellant’s written consent. The Respondent is deemed to have permitted, on at least one occasion, an additional person to reside in the Dwelling for a significant period. No award of damages is merited, however, as no case was established on the Appellant’s behalf as to any loss sustained as a result thereof.
8. Determination:
Tribunal Reference TR1214-000950
In the matter of Des O’Donnell (Landlord) and Michael Reilly (Tenant) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Notices of Termination dated 18 February 2014, 7 March 2014, 17 June 2014, 31 July 2014 and 15 January 2015, served on by the Appellant Landlord on the Respondent Tenant in respect of the tenancy of the dwelling at 19 Lios Mor, Newport, Co Mayo, are invalid.
2. The Respondent Tenant shall pay the total sum of €5,002 to the Appellant Landlord in eight consecutive monthly instalments of €600 on the 28th day of each month followed by one further instalment of €202 on the 28th day of the immediately succeeding month commencing on the 28th day of the month immediately following the issue of the Determination Order by the Board being rent arrears due to 30 May 2015 of €4,652, plus damages of €150 for the consequences of his breach of tenant obligations pursuant to section 16(a) in having failed to pay rent as it fell due, plus damages in the sum of €200 for the consequences of his breach of tenant obligations under s. 16(f) & 16(l) as defined under s. 17(1)(a) of the Act in having caused damage in excess of normal wear and tear and having altered the locking mechanism of the door of the dwelling without the written consent of the Appellant Landlord, in respect of the tenancy of the above dwelling.
3. The enforcement of the Order for payment of €5,002 will be deferred and the total sum owing reduced by the cumulative sum paid in the monthly instalments made by the Respondent Tenant to the Appellant Landlord on each due date, until such time as the sum of €5,002 has been paid in full.
4. 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 Appellant Landlord.
5. The Respondent Tenant shall continue to pay rent at the monthly rate of €450 per month, or proportionate part thereof at the daily rate of €14.79 where a whole month does not apply 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 the Respondent Tenant vacates and gives up possession of the above dwelling.
6. The Respondent Tenant shall provide, within seven days of the date of issue of the Order by the Board, an effective key to the locking mechanism fitted to the door of the above dwelling to the Appellant Landlord or his nominated agent.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 18/06/2015.
Deirdre Bignell Chairperson

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1215-001525 / Case Ref No: 0815-19942
Appellant Landlord: Cian Powell
Respondent Tenant: Leanne Murphy, Claire O Neill, Sarah Ryan, Holly
Nuzum, Jack Marshall, Aidon Baron
Address of Rented Dwelling: 2 Gledswood Mews, Bird Avenue, Clonskeagh ,
Dublin 14, D14WC04
Tribunal: John Tiernan (Chairperson)
Nesta Kelly, Mary Doyle
Venue: Board Room, PRTB, Floor 2, D’Olier Street, Dublin
2
Date & time of Hearing: 21 March 2016 at 10:30
Attendees: Sheila Marshall (Tribunal Representative)
Jack Marshall (Respondent Tenant)
Clive Nuzum (Tribunal Representative)
Janet Nuum (Tribunal Representative)
Holly Nuzum (Respondent Tenant)
Claire O Neill (Respondent Tenant)
Margaret Barron (Tribunal Representative)
Grainne Ryan (Tribunal Representative)
Anthony Paul Byrne (Barrister)
Cian Powell (Appellant Landlord)
William Conway (Witness)
Jonathon Miller (Barrister)
Pamela Keegan (Barrister)
In Attendance: Sgt Ivan Howlin, SubpoenaedWitness
DTI Stenographers
1. Background:
On 01 August 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 06 November 2015. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of € 2,900 to the Applicant
Tenants within 7 days of the date of issue of this Order being the balance of the
unjustifiably retained security deposit of €4,800 having deducted €1,900 for damage
to the dwelling in excess of normal wear and tear in respect of the tenancy of the
dwelling at 2 Gledswood Mews, Bird Avenue, Clonskeagh, Dublin 14, D14 WCO4.
Subsequently the following appeal was received from the Landlord on 23 December
2015. The grounds of the appeal are Standard and maintenance of dwelling, Damage in
excess of normal wear and tear, Breach of tenant obligations, Breach of fixed term lease
and Anti-social behaviour. The appeal was approved by the Board on 12 Jaunary 2016
The PRTB constituted a Tenancy Tribunal and appointed Nesta Kelly, Mary Doyle, John
Tiernan 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 Jaunary 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 01 March 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
A book of 51 ‘screen grab’ type photographs submitted on Day 2 of the Hearing
purporting to show the condition of the dwelling at a time of some days before the
commencement of the tenancy. Counsel on behalf of the Respondent Tenants objected
to the submission on the basis that the provenance of such ‘screen grabs’ was uncertain
and that such material could have been tampered with.
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 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 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:
The Hearing was adjourned on 1 March 2016 to 21 March 2016
The Appellant Landlord’s Case:
Evidence of Mr Cian Powell, Landlord: Mr Powell said that he owns the dwelling since
c.2005 in conjunction with his father Mr Brendan Powell. He said that there have been
about 13 or 14 tenancies in the dwelling in his period of ownership. He said that the
dwelling is a three storey house with entrance hall, living-room and kitchen on the ground
floor, two bedrooms and a bathroom on the first floor and two bedrooms and an en-suite
bathroom on the second floor. He said that the dwelling dates from the 1980’s and
whereas he did not have an exact measurement it has a floor area of c.1300 square feet.
He said that he also owns the dwelling next door. He said that the tenancy agreement did
not have an itemised inventory attached but asserted that he had provided new carpets
throughout immediately prior to the tenancy and that some painting had been undertaken.
He said that the furniture included kitchen ware and cutlery, a three seater couch and two
living room chairs, a dining table and three chairs, six beds, six bedside lockers and builtin
wardrobes. He said that the couch in the dwelling had been provided a number of
weeks prior to the commencement of the tenancy. He said that the dwelling had been
vacant since May 2014 and that the tenancy commenced on 25th August 2014. He gave
evidence of having engaged a company to replace the front door lock at the request of
the tenants in November 2014 but that the tenants ignored his requests to give him a key
in order that he could get one cut for his own use.
Mr Powell said that he carried out an inspection of the dwelling on 6th January 2015. He
said that he found that the timber side gate was broken, the kitchen window was broken,
the couch was stained and had a broken leg, he further said that there was a broken bed
and that there was a burn mark on the carpet. He gave evidence that he had brought
these matters to the notice of the Tenants for their attention.
The Landlord recounted that on 19th June 2015 he was attending at the dwelling next
door and noticed a lot of glass and bottles strewn around the area. He said that he
knocked on the door of the subject dwelling and that a person answered who was not one
of the tenants and was not known to him. He submitted that the person told him that he
and another person had answered an advertisement on a property website and had paid
rent to Claire O’Neill in a sub-letting arrangement that commenced on 1st June 2015. He
said that these persons told him that all of the original tenants had vacated earlier except
for Claire O’Neill who had vacated that day. He said that at his request the two persons
left immediately. The Landlord said that he entered the dwelling and that he found that
the interior was wrecked particularly items of furniture. He submitted photographs taken
on his camera phone. He said that he tried to contact tenant Claire O’Neill who he said
told him she was at the Airport about to leave the country and that he ‘should get
someone else to deal with it’.
The Landlord said that he changed the locks to secure the property on the same day 19th
June 2015 and then immediately emailed each of the lease signatories describing what
he had found, stressing the urgency given that the term of the tenancy was to terminate in
6 days and inviting them to address matters. Within the email he advised that he would
meet with them to provide a new key for access. He gave evidence that on the morning of
23rd June 2015 when he had no response he assumed that he was not going to hear
from the tenants and that in the light of the imminent new tenancy that was due to
commence on 29th June he engaged a contractor to remove the broken furniture. He said
that he accepted that this was a mistake and that his actions had deprived the tenants of
the opportunity of repair. He gave evidence that he did not receive any contact in
response until 6.40pm on 23rd June 2015 and made an arrangement to meet with a
group of the parents and tenants on the following morning at 10am. He said that on 24th
June he met with the group and walked through the dwelling pointing out the soiled walls
and burn marks and showed photographs of the broken furniture that had been removed.
He gave evidence that because of the attitude of the parents which he said was abusive
towards him he decided to leave them in control of the property and to let them get on
with the tasks.
The Landlord gave evidence that the work undertaken by the group cleaned surfaces but
did not address matters such as the burns on the carpets, the replacement glass in the
inner front door, re-plastering and repainting of the punctured and marked walls, the
replacement of furniture, the repair of the gate and other matters that he was not making
a claim for such as the replacement of fridge shelving and rubbish removal.
The Landlord submitted invoice evidence in respect of 1) Carpet replacement, 2)
Repainting, 3) Glass replacement, 4) Replacement Couch, 5) Replacement Furniture and
Kitchenware, 6) Replacing Locks. Other items claimed included for timber gate repair and
waste removal. The total amount being claimed in compensation by the Landlord in
respect of damage in excess of normal wear and tear amounted to €5,570.01
The Landlord submitted evidence that whereas there were no arrears of rent outstanding
in respect of the tenancy there were a number of occasions during the course of the
tenancy when rent was late and that the written lease agreement included a provision for
the imposition of a penalty in the sum of €100 per day in respect of such overdue rent. He
gave evidence of 13 such days thus incurring an amount of €1,300 which he wished to
claim. He said that the condition was motivated as a deterrent and was there to protect
him as Landlord from the effects of rent arrears. In response to a query he said that his
credit rating was not affected by the late payments in this case.
He gave further evidence of a fine of €50 per day that was provided for within the lease
agreement where necessary repairs were to be effected by the tenants and remained
undone. He claimed that he was entitled to charge €600 for 12 days in two separate
periods that such repairs were outstanding in the course of the tenancy. He further
claimed a sum of €100 in the form of a fine that was provided for within the lease
agreement in respect of anti-social behaviour that he alleged arose on the occasion of a
party at the dwelling when a neighbour’s electronic gate intercom was interfered with and
which he said was later conceded by the tenants to have been perpetrated by attendees
at the party. In all the gross amount of fines he claimed as outlined above through the
terms of the lease agreement amounted to €2,000.
In relation to his claim for recompense in respect of his time arising from the breach of
tenancy obligations on the part of the tenants the Landlord said that he owns and
manages five retail outlets with 87 employees and that he has valued his time at €40 per
hour. He said that his claim is based upon the extraordinary time he had to devote to the
tenancy arising from the fact that on 19th June 2015 he found two persons who were
unknown to him residing in the dwelling and whom he alleged were recruited by the
tenants through an advertisement on a popular property letting website and through the
extraordinary level of damage in excess of normal wear and tear including the necessity
for repainting, carpet replacement and furniture replacement following a ten month
tenancy He gave evidence that the value of his time in this regard amounted to €1,540.
He said that he also wished to claim the sum of €400 in respect of preparation for the
adjudication hearing and that he should also be compensated for his time in preparation
and attendance at the Tribunal as yet to be calculated.
The Landlord said that he wished to claim €1,200 in lost rental income on a planned
ensuing tenancy that had been due to commence on 29th June 2015 which fell through
due to the amount of repair works necessary in the period after the termination of the
tenancy on 25th June 2015.
Evidence of witness William Conway: Mr Conway gave evidence that he is a waste
removal contractor and that he was requested to attend at the dwelling on 23rd June
2015 in order to assess the cost of and assist in the removal of waste furniture material,
broken fittings and rubbish from the dwelling. He said that when he entered the dwelling
there was rubbish all over the place, TV’s upturned and that there was a broken living
chair. He said that the couch was damaged by staining and that he could see it was lobsided
due to one of the legs being broken. He said that the dwelling looked abandoned.
He gave evidence that the floors were not swept or hoovered in a long time. He said that
there was a smell and old perished food in the presses, bins were overflowing and the
sink was full of stuff. He said the carpets were stained with wax and had burn marks. He
said that in his opinion there was no way of restoring the carpets to acceptable standard.
He said that three or four mattresses were soiled and stained. In response to a query he
said that he estimated that there were more than ten cigarette burn marks on the carpets.
He gave evidence that he returned on a later occasion to remove the carpets.
Under cross examination Mr Conway said that the timber gate at the dwelling was old but
that the break in the timber looked fresh. He said that it was he who had taken the
furniture out of the dwelling prior to the arrival of the parents of the tenants on 24th June
2015. When asked whether he considered the furniture that was removed to have been
repairable had the tenants been given such opportunity he said that he didn’t know the
answer to that but expressed the view that the timber material that was in the furniture
was not solid timber and this would mean given the damage involved that the items
removed were not repairable. He confirmed that he did not dismantle any item of furniture
that he considered repairable. In response to further cross examination he confirmed that
the appearance of the carpet had improved in the interim between his first visit and his
later visit after it was cleaned but reiterated that it was definitely not in acceptable
condition at the time of his second visit. Under further questioning he further expressed
the view that where there is matching carpet throughout a house if the same make,
quality and pattern cannot be sourced it would not be the practice to just replace portions
or rooms with a different carpet.
Evidence of Sergeant Ivan Howlin: Sergeant Howlin stated that he attended at the
dwelling on 25th June 2015 at the request of the Appellant Landlord with a view to
ensuring that there would be no breach of the peace in the course of the vacation of the
dwelling. He said that when the cleaning work was completed he walked through the
dwelling and saw its condition at that stage. He said that by and large in so far as he
could comment there had been a good effort in cleaning up the dwelling but that he
observed the iron burn and cigarette burns on the carpets, that walls were marked with
stuff splashed up on them, and that there was damage evident on remaining fittings. He
observed wheelie bins that were full. He said that in his opinion the dwelling would require
some work before it could be re-let.
He said that the demeanour of the Parties was unfriendly. He said that he could not
confirm that when the group of parents was departing the dwelling witness Sheila
Marshall did offer to shake hands with the Landlord. He confirmed however that she
appeared to make a move in that direction.
The Respondent Tenants’ Case:
Evidence of parent and witness Ms Janet Nuzum: Ms Nuzum gave evidence that she is
the mother of student tenant Holly Nuzum. She said that she did not view the dwelling
prior to the commencement of the tenancy. She said that she had several phone call
discussions with the Appellant Landlord whom she said she found aggressive. She said
that she was horrified by the email she received in January 2015 from the Appellant
Landlord following his inspection. She said that on 15th January 2015 she and her
husband decided to go to witness the condition of the dwelling for themselves.
She said that on entry the dwelling looked perfectly normal and that there was no smell
as alleged. She gave evidence that three female tenants were in the dwelling at the time.
She said that the walls were not dirty and in need of painting as had been requested by
the Landlord. She said that she did observe the couch and its broken leg but opined that
the couch was of unsuitable manufacture for a house with 6 adult students. She said that
on examination she and her husband formed the view that it could not be repaired due to
its chip-board base and they decided to leave it. She expressed the view that the furniture
in the dwelling was of inferior quality.
She said that she observed the broken window in the kitchen but that this was caused
due to one of the tenants being without a key and that he had to resort to breaking the
window to gain entry. Under questioning she did not offer an explanation as to how a
person could reach a door handle or other access way to the dwelling from the position of
the broken window pane. She said that she also observed a hole in the plaster work
adjacent to a bedroom door caused by impact of the door handle which could have been
prevented by the installation of a doorstop.
Ms Nuzum gave further evidence that the dark blue carpet showed up dust and particles
of fluff. She said that there was no hoover in the dwelling and that her daughter had even
brought a hoover from home in January for the purpose of cleaning the dwelling. She
gave evidence that the carpet on the stairs was badly laid and had nails protruding. She
said that her husband had rectified that matter. She said that the smoke alarm was not
working. She said that her husband fitted a small bolt on the back door to make it secure.
She said that she and her husband decided not to repair the broken pane of glass in the
internal hall door because Tenant Claire O’Neill had told them that when she had asked a
glazer to do this he had advised that he would not do it because the original glass had not
been ‘safety glass’.
Evidence of tenant Ms Holly Nuzum: Tenant Holly Nuzum gave evidence that the bed
that was provided by the landlord was not fit for purpose and had been previously
repaired with the use of staples. She said that it took two months from the time the
defects were first noted to the time the Landlord actually replaced the bed during which
period the condition of the bed deteriorated further. However under questioning she later
conceded that it was only around Christmas 2014 when the condition of the bed
deteriorated significantly that she notified the Landlord and that the period between the
time the Landlord was notified of the matter and his actual replacement of the bed was of
the order of two weeks.
She said that the Tenants did have small parties or ‘get togethers’ at the dwelling. She
said that none of the Tenants in the dwelling smoked. However she said that attendees at
parties did smoke in the dwelling. She confirmed that her rent was paid up to date to 25th
June 2015 which was the end date of the tenancy. She said that she vacated the dwelling
on 28th May 2015 and went abroad. She said that there were three tenants still residing
at the dwelling at that stage.
Evidence of parent and witness Ms Gráinne Ryan: Ms Ryan said that she is the parent of
student tenant Ms Sarah Ryan. She said that her early contacts with the Landlord during
the organisation of the lease left her with the impression from his tone of voice and emails
that he was an angry man. She said that she attended at the dwelling on the day the
student tenants took up occupancy and that she thought the place looked shabby and
had a shoddy finish. She said that the space in the dwelling and the furniture provision for
six students were not adequate. She said that there were no stoppers at doors to prevent
door handles denting or penetrating plasterwork. She said that the stair bannister was
rickety. She said that the carpets did look newish but that the couch did not look new.
She said that both she and another parent, Ms Marshall who also attended on that day,
noted a number of defects in the dwelling that they considered needed to be notified to
the Landlord for his attention and that these were listed and conveyed to the Landlord by
email dated 31st August 2014. She said that none of the issues raised in that email were
addressed as evidenced by the Landlord’s email response.
She said that her daughter vacated the tenancy on 28th May. She said that she did not
respond to the email communication from the Landlord that was sent on 19th June but
had liaised with the other parents to decide on their best strategy. She said that they
resolved to attend at the dwelling and organised cleaners in advance. In response to
questioning she said that this was done prior to viewing the extent of any damage and
that at that stage they did not consider the possible necessity of replacement of carpets
or other fixtures and fittings.
Ms Ryan gave evidence that when she and the other parents and professional cleaners
attended at the dwelling on 25th of June 2015 the walls and paintwork were washed
down, surfaces were cleaned and the carpets were washed and cleaned. She said that in
her opinion anything remaining was normal wear and tear.
Under cross examination she said that in hindsight perhaps it would have been wiser to
have contacted the Landlord when he emailed on 19th June 2015 but that they felt he
was going to keep the deposit anyway.
Evidence of parent and witness Ms Sheila Marshall: Ms Marshall, mother of Jack
Marshall student tenant gave evidence that the Landlord increased the security deposit
from €500 up to €800 for all six tenants when he discovered that some male tenants were
to be involved in the tenancy. She said that she ensured that her son’s rent was paid on
time and had not been aware, until notified by the Landlord, of the fact that rent was not
paid on time at Christmas.
She gave evidence that when she received the email from the Landlord on 19th June
2015 regarding the condition of the dwelling and the sub-letting she liaised with the other
parents and set up a ‘whatsap’ group to coordinate their interaction on the matter
particularly in light of their joint and several liability and her view that they needed to take
any response action as a group. She said that they knew that there had been a PRTB
dispute in regard to the dwelling previously and that they all knew they would come
before a Tribunal at some stage and that they were afraid. She said that setting up the
contact group took some time and that she did not reply to the Landlord’s email until 23rd
June 2015.
Evidence of tenant Claire O’Neill: Ms O’Neill confirmed that she was the last of the
tenants to vacate the dwelling. She said that she had been coming and going in June
2015 and that the final date on which she was at the dwelling was on 10th June 2015.
She said that in regard to a final clean up that she had assumed that they would all do
their own rooms. She said that she thought that her two co-tenants who were still in
Ireland at that stage would look after the final clean-up prior to final vacation of the
dwelling which was due to happen on 25th June 2015. She said that she had no
arrangement discussed to this effect. She said that she could not remember precisely
what she did with the key but that she probably left it on the table.
She confirmed that she was the tenant who had organised the payment of rent to the
Landlord but that she did not contact him to seek a deferral of payment at Christmas
when there had been a default in payment for a period of 10 days. She confirmed that
she relinquished that role in the month after that. She confirmed that at the time of the
inspection of the dwelling by the Landlord on 6th January 2015 she was at the dwelling
and that the kitchen window was broken at that time and the couch was broken and that
she had requested time to defer the repairs demanded until the other tenants returned
after their Christmas break .
She said that she knew nothing of any sublet of the tenancy and that she was at the
airport on her way home to the US on 19th June 2015 when she received a call from the
Landlord. She said that she could not do anything at that stage because her flight was
about to depart at the time. She confirmed that the Landlord had put it to her in the course
of that phone call that there were unknown persons residing at the dwelling and that she
told him she did not know who they were.
She gave evidence that she was familiar with the tenants who lived in the dwelling during
the previous year and had visited the dwelling in or about June 2014. She said that the
couch in the dwelling which the Landlord had claimed had been purchased some weeks
prior to the commencement of the tenancy now under dispute was in the dwelling when
she visited in June 2014. She said that the extra mattress in the sitting room was there in
case a friend wanted to stay over.
Appellant Landlord’s Summation on part of Mr Millar:
Mr Millar summarised that his client had presented a case that included independent
verification of damage in excess of normal wear and tear through the evidence of Mr
Conway and Sergeant Howlin. He argued that these witnesses had confirmed that even
after the attempted clean-up on the part of the tenants there were burn marks on carpets,
marks on walls, an unrepaired glass panel in an internal door broken door and a broken
gate. He said that the Landlord has admitted that it was a mistake on his part to have
removed the damaged furniture but that as well as Mr Conway’s statements there had
been photographic evidence provided to verify this damage. He cited the evidence of subletting
by the tenants and the evidence of apparent abandonment of the dwelling in
support of his client’s claims. He drew the attention of the Tribunal to Tribunal Case
Reference TR 41 of 2007 as an appropriate precedent case.
Respondent Tenants’ Summation on the part of Mr Byrne:
Mr Byrne argued that the dwelling was too small for occupation by 6 student tenants. He
said under the provisions of the Act damage beyond normal wear and tear must be
considered in the context of the level of occupancy and that any damage in the course of
this tenancy fell in to such category. He said that due to the actions of the Landlord the
Tenants were deprived of the opportunity to repair any damaged furniture and were
deprived of the first hand sight of such alleged damage. He reiterated his objection to the
photographic evidence of the condition of the dwelling prior to the tenancy and said that it
is not clear that photographs have not been staged. He said that given the short
timescale involved and the number of persons who had to be communicated with the
response of Ms Marshall to the Landlord’s communication of 19th June 2015 when she
replied on 23rd June 2015 was reasonable. He said that Tribunal Ref TR 41 as cited by
Counsel on behalf of the Landlord had included an element of rent arrears which did not
arise in this case. He also said that the tenants were deprived of permission to re-enter
the dwelling on the final day following completion of their cleaning work in order to take
photographs.
6. Matters Agreed Between the Parties
1) That the rent in respect of the tenancy was €3,600 per calendar month
2) That the tenants paid a deposit of €4,800
3) That the tenancy commenced on 25th August 2014
4) That the tenancy ended on 25th June 2015
5) That there were no rent arrears outstanding at the end of the tenancy
7. Findings and Reasons:
Based upon the balance of probabilities, the Tribunal having considered the evidence as
adduced makes the following findings:
Finding No.1:
The Respondent Tenants caused or allowed to be caused damage in excess of normal
wear and tear to the dwelling in the course of the tenancy. The Tribunal awards damages
in the sum of €3,752.08 to the Appellant Landlord in respect of the consequences of that
breach and finds that this sum may be deducted from the Tenants’ security deposit of
€4,800.
Reasons: The Tribunal accepts the evidence of the Landlord that there was damage to
the dwelling in excess of normal wear and tear in the course of the tenancy. In particular
the Tribunal accepts the evidence as adduced on the part of Mr Conway relating to the
condition of the carpets and the walls at the end of the tenancy and more particularly that
of Sergeant Howlin who viewed the dwelling immediately after the attempted clean-up
work on behalf of the tenants. The Tribunal accepts the evidence of the extensive
photographic evidence depicting various damage to the dwelling as submitted.
Notwithstanding the objection made by Counsel on behalf of the Tenants to the booklet of
51 ‘screen grabs’ submitted on Day 2 of the Hearing the Tribunal accepts that these have
at least some relevance having regard to the response to the question posed to the
Tenants wherein they stated that the images appeared to reflect the condition of the
dwelling at the commencement of the tenancy. In its considerations the Tribunal has had
regard to the extent of occupation of the dwelling.
In accordance with the provisions of s.16(f) of the Act the Tribunal finds that the Tenants
have been in breach of their obligation in that regard. Accordingly in accordance with the
provisions of s.12(4)(b) of the Act the Tribunal deems that the Landlord is justified in
retaining the total sum of €3,752.08 from the Tenants’ deposit of €4,800 made up as set
out in items 1) to 6) below.
The Tribunal accepts that the following items of damage in excess of normal wear and
tear were caused in the course of the tenancy and awards the amounts as described.
1) Carpets (€1185.75): The Tribunal accepts that there was damage in excess of
normal wear and tear to the carpets in the dwelling and allows damages in the sum of
€1,185.75 to the Landlord in this respect their replacement. The Tribunal has accepted
the evidence of witnesses William Conway and Sergeant Howlin in this regard. The
Tribunal also notes the comment on the invoice from the professional cleaning company
as submitted on behalf of the Tenants that to the effect that ‘couldn’t remove some wax
off carpets’.
2) Painting (€1,536.33): The Tribunal accepts the evidence of the Landlord and of
Sergeant Howlin in this regard. The Landlord has submitted invoices in respect of
painting materials and labour in respect of this work in the total sum of €1,536.33 and the
Tribunal allows this sum in damages.
3) Couch (€500): The Tribunal notes that the Landlord brought the condition of the
Couch to the Tenants’ attention as early as January 2015 and requested that the matter
be addressed. On the evidence on behalf of the Tenants it was stated that having viewed
the Couch they chose not to take up the opportunity to put the matter right at that stage
and the photographic evidence showed that it was not fixed at the end of the tenancy.
The Landlord submitted an invoice in the sum of €850 in respect of 2No. Two seater
Couches to replace the original Three seater unit. The Tribunal awards the sum of €500
to the Landlord in regard to the replacement value of the Three seater Couch.
4) Internal Door Glass Replacement (€120): The evidence adduced on behalf of both
parties described that the glass in the door was broken in the course of the tenancy. The
Tribunal considers that the evidence put forward on behalf of the Tenants that it should
not or could not be replaced due to the original pane being ‘not safety glass’ is not
reasonable and the Tribunal awards the sum of €120 to the Landlord in respect of the
repair of this damage.
5) Front and Back Door Locks (€130): The Landlord has submitted three invoices in
total sum €445 in respect of replacement locks. The Tribunal the inability of the Landlord
at the Tribunal to explain the necessity for and the dates on two of the invoices. The
Tribunal considers that the Landlord was justified in replacing the Front and Back door
locks on the occasion on 19th July when he found that the dwelling had been virtually
abandoned notwithstanding his claim that it had also been sub-let. The Tribunal has
allowed the sum of €130 being the amount on the invoice dated 19th June 2015 as
submitted.
6) Removal and Disposal of Carpets (€280): As a consequence of Finding No.1 above it
was necessary to remove the damaged from the dwelling and dispose of it. The Tribunal
accepts the evidence that such tasks cost €280 and awards this sum to the Landlord in
respect of this.
The Tribunal rejects all claims arising on the part of the Landlord in respect of the
a. Beds
b. Bedside Lockers
c. Dining room Chair
d. Wardrobes/Presses
e. The removal of the above items
on the basis that he removed these items from the dwelling prior to allowing the Tenants
the opportunity to repair or replace them.
And Furthermore
• The Tribunal rejects the claim on the part of the Landlord in respect of arrears of
UPC Broadband charges in the sum of €200 on the basis that the Landlord did not
adduce sufficient evidence to support this claim.
• The Tribunal rejects the claim on the part of the Landlord in respect of the repair of
the internal lock on the door in the hallway in the sum of €80 on the basis that there was a
conflict of evidence amongst the parties on when this matter arose and on the basis that
the Landlord did not adduce sufficient evidence to support his case in this regard.
• The Tribunal rejects the claim on the part of the Landlord in respect of the repair of
the timber gate on the basis that the damage is deemed to have been as a result of
normal wear and tear due also to the condition of the timber in the gate.
• The Tribunal rejects the claim on the part of the Landlord in respect of the repair of
plasterwork. The Tribunal considers that the schedule of repairs in the invoice from the
painter adequately covers the cost of any plasterwork repair and is included therein.
• The Tribunal rejects the claim on the part of the Landlord in respect of the sum of €10
for the cost of emptying wheelie bins at the end of the tenancy on the basis that the
Landlord did not adduce sufficient evidence to support this claim.
Finding No.2:
The Appellant Landlord has unjustifiably withheld the sum of €1,047.92 of the
Respondent Tenants’ security deposit being the balance of total amount €4,800. The sum
of €1,047.92 shall be repaid to the Respondent Tenants.
Reason(s): In accordance with the provisions of s.12(1)(d) & 12(4) a landlord is only
obliged to return that part of the deposit that represents the difference between the
amount of the deposit and the costs of damage in excess of normal wear and tear that
would be incurred in restoring the dwelling. In accordance with the finding No1 above it is
therefore incumbent upon the Landlord to repay the balance of €1,047.92 promptly.
Finding No.3:
The Appellant Landlord’s claim in respect of compensation in the amount of €2,000 in
fines imposed on foot of stated breaches of the terms of the written lease agreement
between the parties is not upheld.
Reason(s): The Tribunal considers that the term of the written lease agreement that
purported to impose fines on the Tenants are contrary to the provisions of the Act. In
particular such terms are deemed to be at variance with s.18 of the Act which provides
that
(1) ..no provision of any lease, tenancy agreement, contract or other agreement (whether
entered into before, or after the commencement of this Part) may operate to vary,
moderate or restrict in any way section 12 or 16.
(2) Subsection (1) does not prevent more favourable terms for the tenant than those that
apply by virtue of section 12 being provided for the lease or tenancy agreement
concerned.
(3) Obligations additional to those specified in section 16 may be imposed on the tenant
by the lease or tenancy agreement but only if those obligations are consistent with this
Act
The Tribunal considers that the imposition of fines as cited in the lease agreement in the
second schedule ‘Further Special Letting Conditions’ is contrary to the provisions of s.18
of the Act. The additional term purporting to impose a fine of €100 per day in respect of
late rent is not a more favourable term under subsection (2) above and is therefore also
not the type of condition contemplated in subsection (3). Furthermore the purported
provisions for the imposition of a fine of €50 per day in respect of the condition of the
exterior, bins and interior of the dwelling is deemed to be unreasonable and contrary to
the Subsection 18(1), 18(2) & 18(3) above.
Finding No.4:
The Appellant Landlord’s claim in respect of €1,200 in compensation arising from loss of
rent due to delay in securing a new tenancy is not upheld.
Reason(s): The Tribunal considers the Landlord did not adduce sufficient evidence to the
Tribunal to support his assertion that any such new tenancy was frustrated by the actions
of the Tenants. No independent witness or signed lease agreement for such tenancy was
submitted. The Tribunal also considers that the Landlord did not adduce sufficient
evidence to show that the required timescale of the work required to restore the dwelling
was such that it could not reasonably have been achieved in time for the purported
commencement of the ensuing tenancy on 29th June 2015.
Finding No.5:
The Appellant Landlord’s claim in respect of €1,540 in damages arising from his time
spent in repairing the dwelling at the end of the tenancy is not upheld.
Reason(s): The Landlord has put forward the argument that the circumstances at the end
of the tenancy were extraordinary whereby he found that the students had virtually
abandoned the dwelling and purportedly sub-let the tenancy to the extent that such
circumstances created extra-over time input of some 38 hours on his part.
Notwithstanding the issue of the purported sub-letting of the dwelling in respect of which
the Landlord did not provide any corroborating evidence, the Tribunal considers that the
Landlord did not adduce sufficient evidence of such extraordinary time input requirement
on his part. Whereas some tenancy changeovers may require little or no input on the part
of a landlord the Tribunal considers that organising of painting, carpeting and the other
works involved in this case constitute part of the normal spectrum of works required of a
landlord at tenancy changeover time.
Finding No.6:
The Tribunal finds that the Appellant Landlord’s claim that the Respondent Tenants sublet
the dwelling in the month of June 2015 is not upheld.
Reason(s): There was a conflict of evidence in regard to this matter and on the balance of
probability the Tribunal considers that the Appellant Landlord did not adduce sufficient
evidence to uphold this claim. He did not produce any witness or any documentary or
photographic evidence to support his assertions in this regard.
8. Determination:
Tribunal Reference TR1215-001525
In the matter of Cian Powell (Landlord) and Leanne Murphy, Claire O Neill, Sarah
Ryan, Holly Nuzum, Jack Marshall, Aidon Baron (Tenant) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
The Appellant Landlord shall refund the sum of €1,047.92 to the Respondent Tenants
within 28 days of the date of issue of this Order being the balance of the Respondent
Tenants’ deposit of €4,800 having deducted the sum of €3,752.08 in respect of
damage in excess of normal wear and tear caused in the course of the tenancy of the
dwelling at 2 Gledswood Mews, Bird Avenue, Clonskeagh, Dublin 14.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 30 March 2016.
Signed:
John Tiernan Chairperson

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1214-000952 / Case Ref No: 1014-14664
Appellant Tenant: Stacey Reilly
Respondent Landlord: Denis McArdle
Address of Rented Dwelling: 13 Dalymount, Phibsborough, Dublin 7.
Tribunal: Patricia Sheehy Skeffington (Chairperson)
Gene Feighery, Finian Matthews
Venue: Tribunal Room, PRTB, Floor 2, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 09 April 2015 at 2:30
Attendees:
Stacey Reilly, Appellant Tenant
Bridie Kavanagh, Appellant Tenant’s Mother
Rory McIntaggert, Appellant Tenant’s Father
Denis McArdle, Respondent Landlord
Stephen Woods, Respondent Landlord’s solicitor, Michael Finucane Solicitors
Mick O’Brien, An Garda Siochana
In Attendance:
Gwen Malone Stenography
1. Background:
On 9 October 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 a Mediation which took place on 28 October 2014, which mediation did not result in agreement.
Subsequently the tenant applied to refer the dispute to a Tribunal, which application was received on 3 December 2014. The Grounds of the appeal were Deposit retention, Invalid Notice of Termination, Other and Unlawfull Temrination of Tenancy (illegal eviction). The appeal was approved by the Board on 15 December 2014.
The PRTB constituted a Tenancy Tribunal and appointed Patricia Sheehy Skeffington, Gene Feighery and Finian Matthews as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Patricia Sheehy Skeffington 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 9 April 2015 the Tribunal convened a hearing at Tribunal Room, PRTB, Floor 2, 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:
Handwritten note signed by the Appellant Tenant on 27 August 2014.
4. Procedure:
The Chairperson asked the Parties to identify themselves and to identify the capacity in which they were attending the Tribunal.
The Chairperson 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 Appellant Tenant in this case) 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 his case, and that there would be an opportunity for cross-examination on behalf of the Appellant Tenants. The Chairperson explained that following this, both parties would be given an opportunity to make a final submission. The Chairperson clarified that Tribunal was a fresh hearing of the case and as the previous mediation was a confidential process the parties were required to adduce their evidence afresh and in full to the Tribunal.
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.
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 parties agreed that the matters in issue comprised:
1. Whether the tenancy was terminated lawfully;
2. Whether the deposit, or a portion of it, was justifiably retained;
3. Whether items of the Appellant Tenant’s post were retained by the Respondent Landlord after the termination of the tenancy;
1. Whether the tenancy was terminated lawfully;
The Appellant Tenant said that on 27 August 2014 she returned to the dwelling. She said that gardai arrived and affected a search under a warrant. She said that this was in relation to a Third Party who lived with her in the dwelling for a couple of months prior to the search. (The name of the Third Party was given to the Tribunal, but as he was not present to counter the serious allegations made against him he will not be named in this report). The Appellant Tenant said that after the search she went out again and the Respondent Landlord phoned her. She said that she told the Respondent Landlord that the Third Party had been living there and he asked her to return to the dwelling.
The Appellant Tenant said that when she returned to the dwelling the Respondent Landlord was already there. She said that he told her that he was disappointed in her and asked whether she had told her mother about the events of the day. The Appellant Tenant said that the Respondent Landlord asked her whether she had a friend that could stay with her that night because she was upset. She said that the Respondent Landlord then left.
The Appellant Tenant said that her mother phoned her at that point and told her that she was being evicted and that the Respondent Landlord would return in fifteen minutes. The Appellant Tenant said to her mother that she had nowhere to go and asked if she could appeal to the Respondent Landlord on her behalf so that she could stay one more night. She said that her mother had phoned her back and told her that the Respondent Landlord had refused the request and she could not stay any longer. She said that she felt that she had no option but to leave and started packing.
The Appellant Tenant said that the Respondent Landlord then returned to the dwelling but that she had not completed her packing. Upon questioning, she did not agree that she was already packing when the Respondent Landlord first arrived, but that he had come back after the initial visit and after telling her, through her mother, that she should leave. She said that she had had put her work uniform in a bag but had not managed to pack her phone charger or other items. She said that the Respondent Landlord made her sign a document saying that she agreed that he had treated her well, but that she had been emotionally stressed at the time and was not given a copy of the document. She said that this all occurred at around 10pm. She said that she gave the keys back to the Respondent Landlord and walked into town to find a place to stay that night. Upon questioning from the Respondent Landlord’s solicitor she did not agree that she had left voluntarily, knowing that she had been in breach of her lease and express agreement not to allow a third party to live in the dwelling with her. She said that she did not know what she had signed and did not have a copy of it (a copy was supplied at the hearing). She agreed however that she had signed this document.
She said that she was homeless for two days. She said she stayed in two separate guest houses because a sporting fixture meant the first was booked up for the second night. The receipts for the guest houses were on the case file. The Appellant Tenant stated that after that, she then stayed with her father until the end of October. The Appellant Tenant said that she could not go back to her mother’s house as she had work in Dublin to go to. She said that this was why she could not go to her mother’s the night that she was put out of the tenancy – she had work in Dublin the next morning.
The Appellant Tenant said that she arranged to go with her father to collect her belongings on 6 September 2014 and the heavier items on 9 September 2014. The
Respondent Landlord’s solicitor put it to the Appellant Tenant that the texts arranging the collection of these items were amicable and business-like. The Appellant Tenant said that she did not want any fighting and wanted to ensure that she regained her possessions.
The Appellant Tenant said that the dwelling had been her home for two years. She said that she knew that the Third Party had caused trouble and that this was a problem, but she said that she should not have been punished for his wrongdoing.
The Appellant Tenant said that there were a number of occasions when the Respondent Landlord let himself into the dwelling without her permission. Pressed on this, she said that there were two times she knew of. She said that one was at Christmas 2013 when a bottle of wine had been left inside the door. She agreed that the rent was collected on Saturdays and it was agreed that if she was not at home the Respondent Landlord could open the door to collect the rent from a designated place just inside the door. She said that the Respondent Landlord had her agreement to collect the rent in this manner. She said that before the Third Party had moved in with her a couple of months prior to the termination of the tenancy she was the only person who had the key to the dwelling.
The Appellant Tenant confirmed that she received no written Notice of Termination of the tenancy at any time.
On questioning the Appellant Tenant agreed that her relationship with the Respondent Landlord had been fine and that he had attended to, or in fact suggested repairs that were required. She agreed that the Third Party had been arrested first in around October 2013 and that at that time she said he would have been staying at the dwelling a couple of times per week. She agreed that she had spoken to the Respondent Landlord following the arrest in October 2013 and that she was aware of the concerns of the other tenants in the building. She did not recall the Respondent Landlord stating that the lease was for her individually. She rejected that she had left voluntarily and queried why she would make herself homeless, and why the Respondent Landlord had said that she was being evicted if she had left voluntarily. She countered the Respondent Landlord’s solicitor’s stated version of events by stating that the Respondent Landlord had not given her any option to stay, rejecting the contention than she had given the Respondent Landlord no opportunity to send a formal Notice of Termination.
The Appellant Tenant’s mother stated that on 27 August 2014 she had a missed call on her mobile phone and she did not know who it was from. However, the Respondent Landlord called back in a short amount of time and asked whether she had been talking to the Appellant Tenant. She said that he explained the events relating to the arrest of Third Party and told her that as a result he would have to put the Appellant Tenant out that night. The Appellant Tenant’s mother said that she protested that the Appellant Tenant was a young girl but that the Respondent Landlord had said that the other tenants were putting pressure on the Respondent Landlord who said that he had to tell them that night that the Appellant Tenant was gone. The Appellant Tenant’s mother said that the Respondent Landlord had said that the Appellant Tenant was very upset about the events of the day so he wanted her, the Appellant Tenant’s mother, to phone her and tell her that she had to leave.
The Appellant Tenant’s mother said that she phoned her daughter and told her what the Respondent Landlord had said. She said that the Appellant Tenant was very upset and she asked if her mother could ask the Respondent Landlord if she could stay one more night. The Appellant Tenant’s mother said that she phoned the Respondent Landlord
who said that under no circumstances could the Appellant Tenant stay any longer and that she had to leave the dwelling within 15 minutes. The Appellant Tenant’s mother said that she phoned her daughter to tell her this and that as she was still packing she let her go. The Appellant Tenant’s mother said that she then received another phone call from the Respondent Landlord stating that the Appellant Tenant was leaving, that he had offered her a lift into town and had asked her if she was OK for money, to which she stated that she was.
The Appellant Tenant’s mother said that she was unable to go to Dublin to fetch the Appellant Tenant that night as she did not have access to a vehicle. She said that her conversation thereafter with the Appellant Tenant was brief as the Appellant Tenant’s phone was low on battery and she did not have her charger.
The Appellant Tenant’s mother reiterated that the Respondent Landlord had given the Appellant Tenant no option but to leave as he was under pressure from the other tenants in the building.
The Appellant Tenant’s mother did not agree with the Respondent Landlord’s solicitor when he put it to her that the Respondent Landlord had phoned her to ensure that she knew what was going on and that the Appellant Tenant had somewhere to stay. The Appellant Tenant’s mother said that she had told the Respondent Landlord that the Appellant Tenant had nowhere to go.
The Appellant Tenant’s father said that he had come to the situation relatively late as he learned about the events a couple of days after they had happened, when the Appellant Tenant’s mother phoned to relate the events. He said that the Appellant Tenant’s phone had been out of battery for the couple of intervening days. He said that he eventually got hold of her and that the Appellant Tenant was upset and stressed and felt let down by what the Third Party had done and that she was confused and didn’t know whether she was coming or going. He said that he offered that she stay at his house, where there was not a great deal of space because he lived there with his wife and children. He said that the Appellant Tenant stayed on the sofa for some time but that she had a roof over her head.
The Appellant Tenant’s father said that it was in this period that Threshold was contacted and it was brought to the Appellant Tenant’s attention that the termination of the tenancy may have been unlawful.
The Appellant Tenant’s father said that he assisted the Appellant Tenant in recovering her belongings from the dwelling. He said that the tenor of his texts to the Respondent Landlord were not angry at that juncture because he did not see it as his place to bring an argument to the Respondent Landlord. He said that he had very little conversation with the Respondent Landlord while collecting the belongings because he was embarrassed over the whole affair, clarifying that he was embarrassed by what the Third Party had done. He said that he was angry about what the Respondent Landlord had done but he did not express this anger to him because he did not think it would solve anything and that he knew a case would be brought to the PRTB in any event. He said that had he expressed his anger that the Appellant Tenant may have been refused the return of her belongings, but readily agreed that all of her possessions had been collected in full and without obstacle.
The Appellant Tenant’s father did not accept that his daughter had left voluntarily and queried if that was the case why she had signed a document in relation to the events at all.
Garda O’Brien gave evidence on behalf of the Respondent Landlord. He said that he had investigated reports of a theft of post from the building in which the dwelling was situate. He said that he had learned from one of the residents that a cheque in the sum of €100 contained in an envelope had gone missing. He said that his enquiries lead him to trace the cashing of the cheque to a bank branch where there was CCTV and the Third Party was identified cashing it. He said a warrant was obtained for a search warrant at the dwelling, where he was aware the Third Party was living. He said that this warrant was executed on 27 August 2014. He said that the Appellant Tenant had been there and confirmed that the Third Party lived there.
The Garda confirmed that criminal proceedings had not concluded in respect of this matter.
The Respondent Landlord said that on the date of a significant family event in October 2013 he had a call from residents of the building to say that guards were there and had raided the dwelling, removing a person in handcuffs. He said that he was not able to attend as he was in the UK but a friend who lived nearby attended on his behalf.
The Respondent Landlord said that on his return from the UK he contacted the Appellant Tenant who said that the person who had been arrested was a friend from home, that she knew it was a serious matter and that there would not be a repeat of it. The Respondent Landlord said that the Appellant Tenant said that this person was not her boyfriend and he was not living there. He said that he drew her attention to the condition in the lease which stipulated only the named person could reside at the dwelling.
The Respondent Landlord said that in 2014 when he was attending to the public areas in the building he saw a person coming and going, but he said that when he talked to the Appellant Tenant about this she assured him that he did not have a key to the door.
The Respondent Landlord said that he started to get complaints from other residents that post was going missing. He said that he asked all of the residents if they had noticed anything but found out nothing. He advised one of the residents to report the matter to the Gardai, which he apparently had already done.
The Respondent Landlord said that when he learned about the Garda search of 27 August 2014 he went to the dwelling but the Appellant Tenant was not there. He said that other residents were very concerned, including two ladies with separate flats on the ground floor. The Respondent Landlord said that he left a message on the Appellant Tenant’s phone asking her to call him. He said he then went to the nearby Garda station. He said that the Gardai advised him that they had a warrant pertaining to the same person who was arrested from the dwelling in October 2013 and he was advised to change all of the locks in the building.
The Respondent Landlord said that he contacted the Appellant Tenant by telephone on his way back to the dwelling. He said that she was distressed on the phone and had admitted everything to him, that she had told him lies before and that it was her boyfriend who had been arrested and that he was living with her in the dwelling. He said that she told him that he had hidden in the bathroom when the Respondent Landlord had previously called to find out if anyone had any information on the missing post.
The Respondent Landlord said that the Appellant Tenant told him to apologise for her to the family next door, that she knew that she had to leave and that she was already packing to go. He said that when he arrived at the dwelling she was already packing her bag and her things were on the bed ready to be packed. He said that at no time did he ask her to leave.
The Respondent Landlord stated that he was concerned for the Appellant Tenant because he had a daughter of a similar age renting in London and he felt that she had had a very distressing day. He said that he asked that she contact her family as he thought that she should not be on her own. The Respondent Landlord said that he offered to contact her family for her. He said that the Appellant Tenant gave him her mother’s phone number.
The Respondent Landlord said that he then went home and discussed the matter with his wife. He said that he had a number of telephone conversations with the Appellant Tenant’s mother, which he said were for the purpose of keeping her informed, not to tell her to do anything. The Respondent Landlord said that he expressed his view that the Appellant Tenant should not be on her own and that she should have a friend with her. He said that she subsequently said that she would be there at 9.45pm and that she would meet him at the dwelling. He said that she then said that she was unable to get into Dublin. The Respondent Landlord said that the Appellant Tenant’s mother had not asked him at any time if the Appellant Tenant could stay on. He said that he was concerned for her being in the flat on her own and that those concerns remained, but that the Appellant Tenant was packing and that it seemed to him that she wanted to get out of the dwelling.
The Respondent Landlord said that he returned to the dwelling and that the Appellant Tenant had packed and said that she would go to stay with friends. He said that the Appellant Tenant was anxious to leave and asked for him to apologise to the neighbours.
The Respondent Landlord said that he asked the Appellant Tenant to sign the note that he had prepared. He said that he felt that he needed something to confirm what had happened. The note, copies of which were handed to the Tribunal, read:
“Following discussion and in view of all that happened I am leaving the flat tonight by agreement. I have been well treated by the landlord”.
The body of the note was in the Respondent Landlord’s writing and it was signed at the bottom by the Appellant Tenant. The Respondent Landlord was asked why he felt it was necessary to assert that he had treated the Appellant Tenant well in the note if there was any question over this. The Respondent Landlord said that he felt he needed something as a precaution. He said that the matter had caused him some distress, that the circumstances were not of his making and that he felt it was relevant to say that he had treated her well. He said that he needed confirmation of everything that had happened. On cross examination, the Respondent Landlord was asked whether he thought that it was acceptable to ask a distressed person to sign a document of this type. The Respondent Landlord said that this view had not occurred to him, but he accepted the point. He said that he thought that he had read the note over to the Appellant Tenant before she signed it.
The Respondent Landlord said that after signing the note the Appellant Tenant freely gave him the keys. He said he was concerned that she had all the keys to the dwelling.
The Respondent Landlord said that he offered the Appellant Tenant money and a lift to wherever she needed to be dropped, but that she said that she did not need money as she had been paid that day. The Respondent Landlord said that the Appellant Tenant was calmer at that stage and she confirmed that she had all of her belongings that she needed. He asked about the goldfish, saying that she could not leave it, and he said that she asked the Respondent Landlord to feed it.
He said that he walked the Appellant Tenant to the front door where she wished him well. He said that he tried to call her the next day to see if she was OK.
The Respondent Landlord was asked whether he had told the Appellant Tenant that she did not have to leave or that she could stay. The Respondent Landlord stated that she was already packing and seemed to want to go. His view was that she wanted to get out of the dwelling. He said that it was in a poor state after the Garda search.
The Respondent Landlord was asked why the Appellant Tenant returned the key if she still had belongings there and had to arrange with the Respondent Landlord to collect them. He said that she just gave him the key and he did not think much about it, but that he was regularly there on Saturdays to maintain the common areas so she would have known she could get access then. He later said that he did not think that she needed the keys anymore because she was leaving.
The Respondent Landlord said that he had given the Appellant Tenant a second chance in October of 2013. He said that if the Appellant Tenant had not left voluntarily in August 2014 he would have had to terminate the tenancy; that he would have given her notice under the lease. He said that he had not, in twenty years of being a landlord, had to terminate a tenancy and that he would have consulted his solicitor over how to properly do so.
The Respondent Landlord said that he had changed the keys of all the doors in the building a couple of days later, which he said was on the advice of the gardai. He further said that he had asked a firm who did maintenance work for him to keep an eye on the building, and that the quick change of the locks was done in part in order to reassure the other residents of the building. He was asked whether he himself had written the invoice for the changed locks, a number of discrepancies being highlighted on it. He denied that his handwriting was on the invoice and said that he had not examined the invoice closely, that he knew the company well and trusted them.
The Respondent Landlord was asked whether the other residents in the building had put him under pressure to evict the Appellant Tenant. He said that they were concerned by the events and they expected him to deal with it, but that as it happened the Appellant Tenant decided to leave.
The Respondent Landlord said that he had left a bottle of wine at around Christmas of 2013 inside the door of the dwelling. He said that he left it in the same place where rent was habitually collected with the consent of the Appellant Tenant. He said that he could not see into the dwelling when he opened the door to collect rent, which would be left in cash. He said that the cash received would be inputted into a rent book.
The Respondent Landlord’s solicitor submitted that the signed document of the 27 August 2014 constituted a written agreement for a lesser period of Notice. He said that it was agreed that the incident involving the Third Party was distressing and that it was not the fault of the Appellant Tenant, but that on foot of it she had decided to leave due the
embarrassment she felt over the incident. He submitted that while some evidence came down to credibility, there was no mention of the Third Party in the documents submitted to the PRTB initially, that the Appellant Tenant in effect had omitted relevant context in her application. While he agreed that the Appellant Tenant had been frank in her evidence to the Tribunal her omission previously should be taken into account.
The Respondent Landlord’s submission was that in light of the events of the evening of 27th August 2014 and the Appellant Tenant’s decision to leave, the Respondent had acted reasonably and in good faith.
2. Whether the deposit, or a portion of it, was justifiably retained;
The Appellant Tenant said that she had asked for the deposit back but it was not returned. She said that she had left the place clean and tidy and that there was no reason to retain the deposit. She said that she had received a cheque for €200, which was half the deposit but that she had not cashed it because she did not agree that this was the sum owing.
She said that had a conversation with the Respondent Landlord he had said that he would return €270 but that the cheque was in a lesser sum. She said that the cover letter the cheque came with was sent on behalf of the Respondent Landlord, but was in fact in his own handwriting.
In respect of the deposit, the Respondent Landlord stated that he had sought to retain 50% of it on the basis that the dwelling was not vacant until two weeks after the tenancy had been terminated, meaning that he was not able to re-let it. It was put to the Respondent Landlord that the tenancy was either terminated or, if the belongings were still there, it was not and that he could not have it both ways. The Respondent Landlord stated that he was unable to re-let the dwelling until the end of September.
The Respondent Landlord said that he had sent a cheque in the sum of €200 to the Appellant Tenant. He agreed that the handwritten letter which referred to him in the third person, but which was signed on his behalf had been written by him. He said that as deposits can be difficult he had decided to go through his accountant to send the letter but that he had drafted it himself and that she had merely signed it and sent it on for him. This cover letter stated that the sender had been informed by the Respondent Landlord that he had discussed the deposit with the Appellant Tenant, that she had no requirement to return this sum, but that he was sending it to help her.
No issue about the condition of the dwelling arose.
3. Whether items of the Appellant Tenant’s post have been retained by the Respondent Landlord after the termination of the tenancy;
The Appellant Tenant said that after she had left the dwelling she became aware that certain documents which had been sent to her, including a work P45 and a social welfare cheque, had been sent to the dwelling. She pointed to text messages illustrating a number of items of post which the Respondent Landlord in the texts said that he would forward to her. She further referred to texts from a neighbour in the building who said that some letters had arrived for her. The Appellant Tenant said that she did not receive two of the letters, including the social security cheque and the P45. She said that she obtained a copy of the P45 from work some time afterwards but had never been able to obtain the social welfare cheque, learning from an official in the social welfare office that there was a computer record of the cheque being cancelled. She said that she had
attempted to find out from An Post how to track the missing post with no success. She said that she held the Respondent Landlord responsible for this missing post, highlighting that in forwarding other items he had simply written on her forwarding address without putting any postage stamps on it. The Respondent Landlord’s solicitor asked her whether she had asked the Post Office to redirect her mail after she had moved out: she said she had not.
The Respondent Landlord said that it was his practice to redirect post to any forwarding address for three months, after which he marked ‘no longer at this address’ on any post received. He said that he had sent on any post received for the Appellant Tenant in the normal manner and stated that he had not retained any.
6. Matters Agreed Between the Parties
1. The rent was €130 per week;
2. A deposit of €400 was paid, €200 of which was sought to be returned by the Respondent Landlord to the Appellant Tenant by cheque which has not been cashed.
3. The tenancy commenced on 9 June 2012 and ended on 27 August 2014.
7. Findings and Reasons:
Finding One:
The Appellant Tenant was in breach of her obligations to inform the Respondent Landlord of the identity of all persons ordinarily resident in the dwelling and to ensure no occupant of the dwelling acted in a manner which was anti-social, which breaches of obligations caused damage to the Respondent Landlord assessed at €1,206.88.
Reasons:
1. A tenant is obliged to inform a landlord of the identity of all persons ordinarily resident in the dwelling: section 16(n) of the Act. A tenant is also obliged under section 16(h) of the Act to ensure that no occupant acts in a manner that the Act defines as anti-social. Anti-social behaviour under the Act, pursuant to section 17(b), includes behaviour that causes or could cause fear, damage or loss to any person living in the vicinity of the dwelling. A landlord has a responsibility to enforce the obligations to such third parties living in the vicinity of the dwelling under section 15 of the Act, and the tenant has an obligation to ensure that no act or omission on their part puts the landlord in contravention of any enactment relating to the dwelling: section 16(b) of the Act.
2. It was common case that the Appellant Tenant did not inform the Respondent Landlord that the Third Party was ordinarily resident in the dwelling, despite a question over that issue having arisen in October 2013. Further, the Appellant Tenant accepted the Third Party caused problems in the building in which the dwelling was situated which caused a valid security concern. The Tribunal accepts that the Appellant Tenant had been put on notice of the issues (of the identity of residents in the dwelling and the ongoing security issue) when the matters were raised with her at various times by the Respondent Landlord. The Tribunal therefore finds that the Appellant Tenant allowed an occupant, whose residence in the dwelling she did not disclose to the Respondent Landlord, to act in a manner which was anti-social under the terms of the Act.
3. The Tribunal finds that the Respondent Landlord was obliged under his obligations to third parties who might be affected by the tenancy to act on foot of the security concern. Thus, as result of the Appellant Tenant’s breach of her obligation to ensure that no anti-social behaviour arose, the Respondent Landlord was obliged to attend the building on a number of occasions, change locks and provide security in circumstances whereby there was a reasonable fear that the Third Party had a key to the building. The Tribunal accepts that the correct bill for the security services and lock changing amounted to €706.88 (applying the correct VAT rate of 13.5% to the bill of (€622.80), plus €500 for out-of-hours disruption that required the Respondent Landlord’s presence or input at the dwelling.
4. For the avoidance of doubt, the Tribunal finds nothing turns on a miscalculation in VAT on a bill. Equally, a finding that locks had to be changed on foot of the actions of a third party does not equate to a finding that the Respondent Landlord was entitled to deprive the Appellant Tenant of any replacement key; this matter is set out in the reasons explaining the next finding.
Finding Two:
The Respondent Landlord terminated the tenancy unlawfully, causing the Appellant Tenant damage assessed at €5,159.
Reasons:
1. 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. Thus a Notice of Termination with the correct Notice Period as stipulated by section 62 and 34 of the Act must be served, the relevant Notice period however being subject to alteration by agreement of the parties pursuant to section 69 of the Act. In this case it was clear that no valid Notice of Termination was served by either party. The nub of the issue for the Tribunal to determine was which party in fact terminated the tenancy, i.e. whether it was terminated at the behest of the Appellant Tenant who did not want to be there any more, or as a requirement of the Respondent Landlord that the Appellant Tenant vacate.
2. There was a direct conflict of evidence over the reason why the Appellant Tenant vacated the dwelling on 27 August 2014. The Appellant Tenant argued that it was because she was told she had to leave by the Respondent Landlord, which effectively rendered her homeless. The Respondent Landlord argued that she had left voluntarily, apparently embarrassed by the incident involving a Third Party who had been living in the dwelling with her consent. The sworn testimony of the Appellant Tenant and her mother on the one hand, and the Respondent Landlord on the other hand, were in direct contradiction on a number of points.
3. Both versions of events are unsatisfactory in some respects. That the Appellant Tenant had not protested more, or that her mother had not insisted that the Respondent Landlord could not put her daughter out onto the street at 10pm or that she had not contacted the Appellant Tenant’s father about the incident were questions vaguely answered by a sense of embarrassment over the incident with the Third Party and that the Appellant Tenant’s phone batteries had run down. Yet the complaint over the manner in which the tenancy was terminated was not articulated in the text correspondence on file, even after the Appellant Tenant had consulted with Threshold. The reason stated for
this was that she wished to ensure that she obtained access to her belongings which remained in the dwelling.
4. The Tribunal found that the Respondent Landlord’s concern for the Appellant Tenant rang true. There was agreed evidence that he had told the Appellant Tenant’s mother that he had offered her money on the night the tenancy terminated, but that the money was not accepted by the Appellant Tenant. However it was also agreed that there was concern from the other residents of the dwelling. Thus the offer of money and his genuine concern does not greatly illuminate the key question of whether such concern stemmed from the Appellant Tenant’s unilateral choice to leave, or from his requirement that the Appellant Tenant leave due to pressure other tenants, both of which rationales put the Appellant Tenant in a precarious situation which could have caused the Respondent Landlord’s concern.
5. Further, whereas the note signed by the Appellant Tenant at the Respondent Landlord’s request was presented as confirming his version of events, it does not in fact confirm that version of events. It does not state that the Appellant Tenant chose of her own volition to terminate the tenancy, which it could have simply stated had that been the case. Rather, it says that ‘following discussion in view of all that has happened I am leaving the flat tonight by agreement’. This suggests that after some discussion the Appellant Tenant agreed that she would have to leave, which is at odds with the Respondent Landlord’s contention that the Appellant Tenant unilaterally and with no intervention of the Respondent Landlord decided to leave. This strongly suggests that any agreement on the tenant’s part to leave cannot have been of an entirely voluntary nature.
6. The Tribunal also considered the issue of how and why the keys were returned. The evidence was that there was no question but that the Appellant Tenant would hand back the keys, albeit she had belongings including a goldfish that required feeding in the dwelling. The evidence was that the Respondent Landlord was concerned that the locks were changed very quickly after the events taking into account prior concerns over the theft of post in the dwelling. This evidence suggests that the Respondent Landlord did not want the Appellant Tenant to have a key to access the dwelling.
7. Taking the above into consideration, applying the civil standard of proof (the balance of probabilities) the Tribunal found it more likely that the Respondent Landlord had required the Appellant Tenant to leave, rather than her voluntarily giving up vacant possession of the dwelling. Accordingly, the Tribunal finds that the Respondent Landlord unlawfully terminated the tenancy.
8. That the termination of the tenancy caused distress and inconvenience is accepted by the Tribunal. It notes that two hotel bills, one for €99 and the other for €60 were submitted to the case file. It further notes that the Appellant Tenant was deprived of her home suddenly and without being able to access her belongings for over a week. It further takes into account the fact that the Appellant Tenant was effectively rendered dependent on her parents again for accommodation, at least for a period. It notes that the time of night at which the Appellant Tenant was required to leave exacerbated the distress and inconvenience, as did the short period in which she initially had to gather her belongings.
9. In assessing damages, the Tribunal takes the above into account. However, it also takes into account that the Appellant Tenant had created a situation whereby the Respondent Landlord would have been entitled to serve a valid Notice of Termination
giving seven days notice (for breach of tenant’s obligations in respect of anti-social behaviour, pursuant to section 67 of the Act), although of course he did not take this step, and the impact of this breach has been assessed in damages under Finding One. Whereas it may seem inappropriate to expressly link the length of time of homelessness to the requisite Notice period that should have been granted (as from the base of a home a person is better equipped to find themselves another home), this is a factor that must be considered.
10. Thus the damages assessment focuses on the impact of the method of termination of the tenancy on the 27 August 2014 on a single woman at 10pm who was in a vulnerable and distressed situation and the effective homelessness she suffered thereafter balanced by the knowledge that the Appellant Tenant, to a degree, contributed to, allowed, or acquiesced in the development of the situation which led to the unlawful termination. In the circumstances it finds that general damages for the unlawful termination should be assessed at €5,000, plus the vouched costs of the hotels at €159.
Finding Three:
The Respondent Landlord unjustifiably retained the Appellant Tenant’s deposit of €400.
Reasons:
1. A landlord is obliged to promptly return a deposit under section 12(4) of the Act, and may retain some or all of it only if there is damage in excess of normal wear and tear or rent arrears or outstanding utility bills for which the tenant is liable.
2. In this case, there was no question of outstanding utility bills or any damage in excess of normal wear and tear. In circumstances whereby the Tribunal has found that the Respondent Landlord unlawfully terminated the tenancy, it is inconsistent to find that rent was owing after the date at which the Appellant Tenant was deprived of her occupation of the dwelling. As such, no rent arrears arose and there was no justification to retain the deposit.
Finding Four:
The Respondent Landlord was not responsible for any items post forwarded to the Appellant Tenant.
Reasons:
The Tribunal finds on the balance of probabilities that the Respondent Landlord forwarded post to the Appellant Tenant in a manner which was largely effective. The Tribunal does not find that the Respondent Landlord can be held responsible for any such items getting lost in the post.
8. Determination:
Tribunal Reference TR1214-000952
In the matter of Stacey Reilly (Tenant) and Denis McArdle (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
The Respondent Landlord shall pay the Appellant Tenant the total sum of €4,352.12 within 28 days of the issue of this Order, being damages for the unlawful termination of the tenancy in the sum of €5,159 plus the unjustifiably retained deposit in the sum of
€400, having deducted the sum of €1,206.88 in damages for the Appellant Tenant’s breach of her obligations in respect of the tenancy of the dwelling at Flat 5, 13 Dalymount, Phibsborough, Dublin 7.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 16/04/2015.
Signed:
Patricia Sheehy Skeffington Chairperson
For and on behalf of the Tribunal.

 

For and on behalf of the Tribunal.
For and on behalf of the Tribunal.

Rosemond v Callaghan

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001725 / Case Ref No: 0216-24289
Appellant Landlord: Liam Rosemond
Respondent Tenant: Emma Callaghan, Justin Molloy
Address of Rented Dwelling: Apt 1 , 35 High St , Sligo,
Tribunal: Dairine Mac Fadden (Chairperson)
Healy Hynes, Roderick Maguire
Venue: Council Chamber, Sligo County Council, County
Hall, Riverside, Sligo
Date & time of Hearing: 08 July 2016 at 11:00
Attendees: Liam Rosemond –Appellant Landlord
Sinead Walsh of Oates Breheny Group – Appellant
Landlord Representative
In Attendance: Recording Technician, DTI Wordwave.
1. Background:
On 17 February 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
Mediation which took place on 04 March 2016. No agreement was reached.
Subsequently the following referral was received on 18 April 2016 by the Landlord. The
grounds of the referral were ‘Rent arrears’’ and it was approved by the Board on 01 June
2016.
The RTB constituted a Tenancy Tribunal and appointed Dairine Mac Fadden, Healy
Hynes, Roderick Maguire as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Dairine Mac Fadden to be the chairperson of the Tribunal (“the
Chairperson”).
On 02 June 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 July 2016 the Tribunal
convened a hearing at Council Chamber, Sligo County Council, County Hall, Riverside,
Sligo.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
By the Applicant Landlord:
Prior to the commencement of the hearing the Tribunal was advised by the RTB that
further documents had been received by email communication from the representative of
the Applicant Landlord the evening prior to the hearing. The Applicant Landlord was
advised that as these documents had not been submitted within the required 5 day period
and that as the Respondent Tenants were not present at the hearing, they would not be
admitted but that it was open to the Applicant Landlord and his representative to refer to
them in their evidence.
By the Respondent Tenants
N/A.
4. Procedure:
There was no appearance by or on behalf of the Respondent Tenants.
The Chairperson asked the persons present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Applicant
Landlord and his representative 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 Tribunal would hear the case in the absence of the Respondent Tenants as they had
been served with the relevant papers and were properly on notice of the hearing; that the
Applicant Landlord would be invited to present his case and that the Chairperson and
members of the Tribunal might ask questions from time to time.
The Chairperson stressed that all evidence would be taken on oath or Affirmation and be
recorded by the recording technician present and she reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
She noted that this was a first hearing as there had previously been mediation which had
not resulted in any agreement between the parties. She explained that the hearing before
the Tribunal was a final hearing which could be appealed to the High Court on a point of
law only. She explained that following the hearing, the Board would make a
Determination Order which would be issued to the parties.
The Applicant Landlord and his representative were then sworn in.
5. Submissions of the Parties:
Applicant Landlord.
The representative for the Applicant Landlord confirmed that the address of the dwelling
was Apt. 1, 35 High Street, Sligo and that the tenancy had commenced on the first of
September 2015. She said that a letting agreement dated 1 September 2015 had been
entered into between the Applicant Landlord and his wife Ann Rosemond with the
Respondent Tenants for a fixed term of 9 months expiring on 31 May 2016. She said that
the agreed monthly rent was €450 payable on the first of each month and that a deposit
of €450 was paid. She said that since the commencement of the tenancy on the 1st
September 2015 a total sum of €1,050 only had been paid in rent being the rent of €450
on the 1st September 2015, the rent of €450 due on the 1st of October 2015 but not paid
until the 12th of October 2015 and a sum of €150 paid on the 11th of December 2015.
She said that she had a meeting with one of the tenants, Justin Molloy on the 11th
December 2015 when he had called to her offices at her request and when they
discussed the arrears. On that date he had paid €150 and had promised to pay the
arrears by the following Friday but had not done so and the arrears had continued to
accrue and no further payments had been made. She said that prior to that meeting in her
office, she had a number of telephone conversations with the Respondent Tenants.
Following the meeting in her office and the Respondent Tenants failure to pay the
arrears, she wrote to them on the 17th December 2015 giving them 14 days to pay the
arrears and warning them that if they failed to do so, that the Applicant Landlord would be
entitled to terminate their tenancy. She said that this was followed up by a further 14 day
warning letter sent to them on the 14th January 2016. She said that she had also tried to
contact them by telephone on a number of occasions. She said that no payments
whatsoever were received on foot of these letters or calls and that a Notice of
Termination dated 14th April 2016 was served on the 15th April 2016 giving a termination
date of the 13th May 2016. She said that as far as she knew the Respondent Tenants
were still in occupation of the dwelling as the keys had not been returned. She had driven
by the dwelling that morning and had noticed that there were opened windows and that
there were also some personal possessions in some of the windows.
She said that the Applicant Landlord had been issued with an Improvement Notice by
Sligo County Council on the 23rd February 2016 on foot of an inspection which she thinks
may have been instigated by the RTB as part of its general inspection programme. She
said that the Respondent Tenants had facilitated the inspection by the County Council
and would have received a copy of the notice but that they had not allowed any access to
the Applicant Landlord to allow him to carry out the required works.
She said that she was seeking arrears of rent for the 10 months of the tenancy to date at
the rate of €450 per month up to the 30th June 2016 and the eight days rent due from the
1st July 2016 to the 8th of July (the hearing date) at the rate of €14.79 per day, less the
€1,050 paid by the Respondent Tenants.
The Applicant Landlord said that he and his wife who also owned the dwelling were
pensioners and had been planning to use the rent for the payment of their health
insurance contribution to the VHI. He said that he needed hip surgery and knee surgery.
He said that the Respondent Tenants’ failure to pay the rent when due had caused them
a lot of stress and that he has difficulty sleeping at night. He said that the works required
by Sligo County Council were of a minor nature only, 7 little points all of a technical nature
but that he was anxious to carry the work out so that he could put the dwelling back on
the market to rent.
In response to a question from the Tribunal, the representative for the Applicant Landlord
said that if she was in a position to rent out the dwelling again, she would expect that it
would rent at €520 a month.
Respondent Tenants
There was no appearance by or on behalf of the Respondent Tenants and no
submissions had been made by them to be considered by the Tribunal.
6. Matters Agreed Between the Parties
N/A
7. Findings and Reasons:
Finding 1: The Tribunal finds that the Notice of Termination served on 15 April 2016 by
the Applicant Landlord on the Respondent Tenants is a valid notice under the Residential
Tenancies Act 2004 as amended by the Residential Tenancies (Amendment) Act, 2015
(“the Act”).
Reason:
In seeking to terminate the tenancy, the Applicant Landlord has complied with his
obligations under Sections 34, 62, and 67 of the Act, in that through his Agent he
requested payment of rent arrears from the Respondent Tenants on a number of
occasions, served a warning letter on the 17th December 2015 and again on the 14th
January 2016 outlining the ramifications of a failure to discharge the arrears. This was
further followed by a valid Notice of Termination served on the 15th April 2016 specifying
a termination date of the 13th May 2016.
Finding 2:
The Respondent Tenants and all persons residing in the dwelling shall vacate and give
up possession of the dwelling within 30 days of the date of issue of the Order.
Reason:
A valid Notice of Termination has been served and the Respondent Tenants are over
holding.
Finding 3: The Tribunal finds that the Respondent Tenants are in in breach of their
obligations under the Act in relation to the payment of rent and are in rent arrears in the
sum of €3,568.32 at the date of the hearing.
Reason:
Under sub-section (a)(i) of section 16 of the Act, a tenant must pay to the landlord the
rent provided for under the tenancy concerned on the date it falls due for payment. In
failing to pay the rent when it became due the Respondent Tenants were in breach of the
foregoing statutory requirement. In accordance with clause 2.2 of the Letting Agreement
entered into between the parties, the Respondent Tenants are jointly and severally liable
for the payment of the rent.
The Tribunal calculates the rent arrears as follows:
10 months’ rent from 1 September 15 to 30 June 16 @ €450 per month = €4,500 +
8 days rent from 1 July 16 to 8 July 16 (date of hearing) @ €14.79 per day = €118.36
Total: €4,618.36.
Less €1,050 payment made by the Respondent Tenants.
Arrears due: €3,568.36
(The daily rate is computed by multiplying the monthly rate of €450 by 12 to yield an
annual rate = €5,400 and dividing that amount by 365 days to yield a figure of €14.79 per
day).
Finding 4:
The Tribunal in accordance with the provisions of section 115(2) of the Act directs that an
amount of €1,500.00 in damages be paid by the Respondent Tenants to the Applicant
Landlord.
Reason: Under section 115(2) of the Act, the Tribunal may give a direction that a
specified amount of damages or costs or both be paid to one or more than one as
appropriate to the parties to a dispute. The Tribunal heard evidence from the
representative of the Applicant Landlord of the significant rent arrears which have arisen
in this case and from the Applicant Landlord of the considerable stress which these
arrears have caused for himself and his wife. The Respondent Tenants have been in
occupation of the dwelling for a period in excess of 10 months and in that period have
paid rent for approximately only 2 months and 10 days of that period. They have paid no
sums whatsoever since the 11th of December 2015 and continue to enjoy the occupation
of the dwelling, leaving the Applicant Landlord in financial difficulty and under
considerable stress. Having regard to all of these circumstances, the Tribunal awards a
sum of €1,500.00 by way of damages to the Applicant Landlord.
8. Determination:
Tribunal Reference TR0416-001725
In the matter of Liam Rosemond, Emma Callaghan, Justin Molloy (Tenant) and
Emma Callaghan, Justin Molloy (Tenant) the Tribunal in accordance with section
108(1) of the Residential Tenancies Act 2004, determines that:
1. The Notice of Termination served on the 15th April 2016, by the Applicant Landlord
on the Respondent Tenants, in respect of the tenancy of the dwelling at Apartment 1,
35 High Street, Sligo, is valid.
2. The Respondent Tenants, and all persons residing in the above dwelling, shall
vacate and give up possession of the dwelling within 30 days of the date of issue of
this Order.
3. The Respondent Tenants shall pay the total sum of €5,068.36 to the Applicant
Landlord, in 12 consecutive monthly payments of €400 each, on the 28th day of each
month, followed by one payment of €268.36 on the 28th day of the immediately
succeeding month, commencing on the 28th day of the month immediately following
the date of issue of this Order, being rent arrears of €3,568.36 and damages of
€1,500, in respect of the tenancy of the dwelling at Apartment 1, 35 High Street, Sligo.
4. The enforcement of the Order for such payment of €5,068.36 will be deferred and
the total sum owing will be reduced by the cumulative sums paid in the monthly
instalments by the Respondent Tenants to the Applicant Landlord, on each due date,
until such time as the entire €5,068.36 has been paid in full.
5. For the avoidance of doubt, any default in the payment 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 Applicant Landlord.
6. The Respondent Tenants shall continue to pay rent from the 8th July 2016 (the date
of the hearing), at the rate of €450.00 per month, or proportionate part thereof at the
daily rate of €14.79, 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.
7. The Applicant Landlord shall refund the entire of the security deposit of €450.00 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.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
15 July 2016.
Signed:
Dairine Mac Fadden Chairperson

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0115-001006 / Case Ref No: 1114-15174
Appellant Tenant: Adrian Shanahan, Carla Coleman
Respondent Landlord: Stephen Gillman, Jane Gillman
Address of Rented Dwelling: 19 Outrath Court, Outrath Road, Kilkenny City, Kilkenny.
Tribunal: Tim Ryan (Chairperson)
Aidan Brennan, John FitzGerald
Venue: Conference Room [G.02], Dept of the Environment, Community and Local Government, Newtown Rd, Wexford.
Date & time of Hearing: 12 May 2015 at 11:00
Attendees:
Adrian Shanahan, Appellant Tenant
Carla Coleman, Appellant Tenant.
Jane Gillman, Respondent Landlord.
Stephen Gillman, Witness and Husband of Respondent Landlord.
Turlough Johnston, Witness for Respondent Landlord.
In Attendance:
Gwen Malone Stenographers.
1. Background:
On 10/11/2014 the Tenant made an application to the Private Residential Tenancies Board (“the PRTB”) pursuant to Section 76 of the Act. The matter was referred to an Adjudication which took place on 12/12/2014. The Adjudicator determined that:
1. The Notice of Termination served on the 11th October 2014 by the Respondent/Applicant Landlord on the Applicant/Respondent Tenant, in respect of the tenancy of the dwelling at 19 Outrath Court, Outrath Road, Kilkenny is valid.
2. The Applicant/Respondent Tenant and all persons residing in the above dwelling, shall vacate and give up possession of the dwelling within 7 days of the date of issue of the Determination Order.
3. The Applicant/Respondent Tenant shall pay any further rent outstanding from the 12th December 2014, at the rate of €850.00 per month or proportional part thereof at the rate of €27.94 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
the above dwelling is vacated by the Applicant/Respondent Tenant and all persons residing therein.
4. The Respondent/Applicant Landlord shall refund the entire of the security deposit to the Applicant/Respondent Tenant, on gaining vacant possession of the above dwelling, less any amounts properly withheld in accordance with the provisions of the Act.
5. The Respondent/Applicant Landlord’s application regarding the Applicant/Respondent Tenant’s breach of section 17 (sic) of the Act, in respect of the tenancy of the dwelling at 19 Outrath Court, Outrath Road, Kilkenny is not upheld.
An appeal was received from the Tenant on 28/01/2015. The ground of the appeal was invalid Notice of Termination. The appeal was approved by the Board on 20/02/2015.
The PRTB constituted a Tenancy Tribunal and appointed Tim Ryan, Aidan Brennan and John FitzGerald as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Tim Ryan to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of the date, time and venue set for the hearing.
On 12/05/2015 the Tribunal convened a hearing at Conference Room [G.02], Dept of the Environment, Community and Local Government, Newtown Rd, Wexford.
2. Documents Submitted Prior to the Hearing Included:
PRTB File
3. Documents Submitted at the Hearing Included:
N/A
4. Procedure:
The Chairperson asked the parties to identify themselves and to identify in what capacity they were attending the Tribunal. He confirmed with the Parties that they had received the relevant papers from the PRTB in relation to the case and that they had received the PRTB document titled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was a formal procedure but that it would be conducted in a manner as informal as possible; that the persons who appealed (in this case the Appellant Tenants) would be invited to present their case first, that there would be an opportunity for cross-examination by the Respondent Landlord; that the Respondent Landlord would then be invited to present her case and that there would be an opportunity for cross-examination by the Appellant Tenants.
He also said that members of the Tribunal might ask questions of both parties from time to time. The Chairperson explained that, following this, both parties would be given an opportunity to make a final submission.
He stressed that all evidence would be taken on oath, or affirmation, and be recorded by the official stenographer present and he reminded the parties that knowingly providing
false or misleading statements or information to the Tribunal was an offence punishable by a fine of up to €4,000 and/or up to 6 months imprisonment .
The Chairperson noted that should the parties indicate that they would be able to resolve the dispute through negotiation, the Tribunal would facilitate any such settlement. The terms of any such agreement can be incorporated into a Determination Order of the Tribunal and thus become enforceable through the Courts.
The Chairperson also reminded the parties that, as a result of the Hearing, the Board would make a Determination Order which would be issued to the parties and posted on the PRTB website. The Determination Order could be appealed to the High Court on a point of law only under Section 123(3) of the Residential Tenancies Act, hereafter referred to as the Act of 2004.
The Parties giving evidence were then sworn in and the hearing commenced.
5. Submissions of the Parties:
Evidence of Adrian Shanahan and Carla Coleman:
In evidence to the Tribunal, the first-named Appellant Tenant said their first ground of appeal was that the Memorandum of Agreement signed between them and the Landlord, dated 1 October 2013, was an invalid contract as it was not in the name of the Respondent Landlord, Jane Gillman, but rather in her husband’s name, Steven (sic) Gillman. Consequently, he said it followed that the Notice of Termination for alleged breaches of this tenancy agreement was invalid.
The first-named Appellant Tenant said the second ground of their appeal was based on the fact that the Respondent Landlord had issued the Notice of Termination for alleged breaches of tenant’s obligation because they kept dogs in the Dwelling. He said they kept three dogs, two labradoodles and a shih tzu. They were kept generally outside and slept on the landing. He said they occasionally went into the sitting room but were very placid animals as they had three young children aged five years, 15 months and nine weeks. The first-named Appellant Tenant said no mention of any prohibition on dogs had been made by the letting agent when they signed the tenancy agreement. He said the Respondent Landlord and her husband had visited the Dwelling shortly after they moved in and had made no mention at all of the dogs. He said the Respondent Landlord’s husband had visited a second time on his own and on this occasion they had discussed the dogs and how the Respondent Landlord’s husband had a dog himself, a young Alsatian.
The second-named Appellant Tenant said that as the end of the fixed term lease neared they had discussed their wish to renew it and the Respondent Landlord had said at one point she would put a lease in the post for them. The Appellant Tenants said the Landlord and her husband then carried out an inspection of the Dwelling in September 2014. At this inspection the Landlord’s husband had insisted that he wished to have the Dwelling kept in pristine condition. The Appellant Tenants said a number of Special Conditions had been attached to the tenancy agreement but said they were entitled to normal wear and tear as outlined in the Act of 2004.
However, as they tried to assert their rights in regard to normal wear and tear, they said the Respondent Landlord’s husband had become very irate and told them he would have them put out of the Dwelling. He had emphasised that the wanted the Dwelling to be
maintained in “a show house” condition and they said he had told them that the best of all materials had been put into the Dwelling and that he had major emotional ties with it.
The second-named Appellant Tenant said the husband of the Respondent Landlord had said they would return in a month to carry out a second inspection. She said at this meeting when she had again mentioned normal wear and tear, it was “like a red rag to a bull” for the Respondent Landlord’s husband who once again threatened to have them put out of the Dwelling. The Appellant Tenants said that according to Schedule Four of the tenancy agreement the landlord was only responsible for maintaining the exterior of the Dwelling. They said another Special Condition stated that they were to maintain the interior in the same condition as at the beginning of the tenancy. They said nowhere was there a mention of “pristine condition”. They said that while the Dwelling could be a little untidy from time to time, they had a cleaner in once a week to help maintain it.
The Appellant Tenants said that they had in fact attended to a number of issues raised by the Respondent Landlord. Damage by one of the dogs to the jamb of the door was repaired and a loose TV network cable was securely fixed to the walls. In addition, they first-named Appellant Tenant said he had power-washed the green algae from the decking at the rear of the Dwelling. Photographs of these repairs were contained in the case file.
Cross-examined by the Respondent Landlord they agreed that a prohibition of keeping animals in the Dwelling was mentioned both in the tenancy agreement itself and in the Special Conditions attached.
Respondent Landlord’s case:
Evidence of Jane Gillman and her husband Stephen Gillman:
In her evidence to the Tribunal, the Respondent Landlord said the Appellant Tenant had clearly broken their obligations under the terms of the tenancy agreement by keeping dogs in the Dwelling. She said when the carried out the first inspection of the Dwelling on 7 September 2014, only the second-named Tenant was present. She said they had asked her to undertake some repairs and said they would return in a month to carry out a second inspection.
The Respondent Landlord said that when they returned to carry out a second inspection both of the Appellant Tenants were present. On this occasion, she said they had told the Tenants that they could remain on in the Dwelling if they got rid of the dogs. She said the Appellant Tenants had said they would not get rid of the dogs and it would take a High Court injunction to get them out. At this stage, she said they had sent the first Notice of Termination. This, she said, was invalid and was followed by a second Notice of Termination on 11 October 2014 with a termination date of 22 November 2014. She said this Notice of Termination was found to be valid by the Adjudicator and, in her opinion, was still valid.
The Respondent Landlord said that since the Adjudication hearing because of the difficulties they had experienced, they had decided to sell the Dwelling.
Under cross-examination from the Appellant Tenants, she said no tenants had lived in the Dwelling previously but a friend who had done some work to the Dwelling had lived there for six weeks as he had sold his own house. She said he had kept a dog there but outside at the back.
In relation to earlier visit to the Dwelling prior to the inspection visit of 7 September 2014, the Respondent Landlord said she had visited early in the term of the tenancy to discuss the removal of some furniture. She said she had also collected post on a few occasions but had it been redirected later. She said the basement of the Dwelling was locked as it contained the files of her husband’s business which, unfortunately, had been placed in receivership.
The Witness and husband of the Respondent Landlord told the Tribunal that the Dwelling was a three-story, detached, architecturally-designed, four bedroom house, finished to the highest standards with bespoke finishes, granite tops, extensive oak flooring, oak doors and oak stairs which extended over six flights. He said it also had extensive soft furnishings and was not the sort of house anyone would want to see dogs in. He said while the first-named Appellant Tenant had denied the dogs slept on the couch, photos taken from his twitter account clearly showed that this was blatantly untrue.
The Witness said they had repeatedly been denied arrangements to access to the Dwelling both by text message and in a number of written letters posted to the Appellant Tenants. These letters were sent on 7 October, 14 October, 20 October, 10 November and 1 December 2014. He said he himself had been very ill and was, in fact, suffering from a terminal illness. He said as far as he and the Respondent Landlord were concerned, this was “a black and white case” in that the Appellant Tenants had not complied with their obligations and were given a valid Notice of Termination.
6. Matters Agreed Between the Parties
1. A 12 month fixed-term tenancy commenced on 1 October 2013.
2. A deposit of €850.00 was paid.
3. The rent is €850.00 per month.
4. A Notice of Termination was issued by the landlord to the tenant on 7 October 2014.
5. A second Notice of Termination was delivered by hand by the landlord to the tenant on 11 October 2014 with a termination date of 22 November 2014.
6. The tenants are still in occupation.
7. Findings and Reasons:
Finding 1:
The tenancy agreement, dated 1 October 2013, is a valid tenancy agreement.
Reasons:
Section 5(1) of the Act of 2004 defines the meaning of “landlord” as “the person for the time being entitled to receive the rent paid in respect of a dwelling by the tenant thereof…” In this instance, the rent was clearly paid directly into the bank account of the Respondent Landlord who also signed the tenancy agreement which was witnessed by the letting agent. The Tribunal therefore finds the tenancy agreement and the Special Conditions attached to it are valid.
Finding 2:
The Appellant Tenants are in breach of their obligation in regard to the keeping of dogs in the Dwelling.
Reasons:
Section 18(3) of the Act of 2004 imposes additional obligations on a tenant other than those specifically mentioned in the Act itself, which may be imposed by the lease or tenancy concerned as long as they are consistent with the Act.
Clause (n) of the tenancy agreement specifically obliges the tenants “not to keep any dog or other animal in or on the premises.” In addition, one of the eight Special Conditions attached to the agreement further states: “No pets allowed on the premises”. This clause and condition are further underlined in a letter from the letting agent dated 3 December 2014 (a copy of which was contained of Case File 1(p111)) in which he states the keeping of dogs was “totally contrary to the special condition of the letting which prohibited same.”
Finding 3:
The Notice of Termination dated 11 October 2014 is valid.
Reasons:
The requirements for a landlord to issue to issue a valid Notice of Termination in respect of breaches of tenant obligation are set out in Sections 34 and 62 of the Act of 2004.
Section 34(1) obliges a landlord before issuing a Notice of Termination to first notify the tenant of the failure to meet his/her obligations and to allow a reasonable time to rectify these breaches. There were numerous exchanges of text messages between the parties including, among them, a long text message dated 17 September 2014, a copy of which was contained on page 60 of Case File 1, in which the Respondent Landlord’s husband outlined in some detail the breaches of obligation by the tenants in regard to the Dwelling. These breaches included the presence of three dogs in the back garden (two large one small), the cutting of a piece of skirting board in the hallway, the installation of a cable without the Landlord’s permission, marked paintwork, an unpleasant smell of dog’s odour in the kitchen, damage to a door frame by a dog and numerous dog droppings in the back garden. There were also tyres piled high and rubbish at the side of the house. The text warned the tenants that if these breaches were not remedied they would be asked to vacate the Dwelling.
While a number of the issues raised were dealt with by the Appellant Tenants in a timely fashion, in a conversation with the Respondent Landlord and her husband in October 2014 the Appellant Tenants confirmed they would not get rid of the dogs. The Tribunal deems this to be in direct contravention of the obligations of the lease and the Special Condition attached thereto.
Section 62 outlines a number of requirements for the Notice of Termination itself and the Tribunal finds that the Notice of Termination dated 11 October 2014 is compliant with these.
8. Determination:
Tribunal Reference TR0115-001006
In the matter of Adrian Shanahan, Carla Coleman (Tenant) and Stephen Gillman, Jane Gillman (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Notice of Termination dated 11 October 2014 in respect of the tenancy of the dwelling at 19 Outrath Court, Outrath Road, Kilkenny is valid.
2. The 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 the issue of the Determination Order.
3. The Applicant Tenants shall continue to pay rent from 12 May 2015 at the rate of €850.00 per month or proportion thereof at the rate of €27.94 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 the above dwelling is vacated by the Applicant Tenants and all persons residing therein.
4. The Respondent Landlord shall refund the entire of the security deposit to the Applicant 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 18/05/2015.
Signed:
Tim Ryan Chairperson
For and on behalf of the Tribunal.
For and on behalf of the Tribunal.

 

Sinclair v O’Shea

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1215-001505 / Case Ref No: 0715-19609
Appellant Tenant: Peter Sinclair, Sinead Sinclair Nee McCoy
Respondent Landlord: Patrick O’Shea, Angelina O’Shea
Address of Rented Dwelling: 88 Clon Brugh, Aikens Village, Sandyford , Dublin
18, D18FY56
Tribunal: Nesta Kelly (Chairperson)
Brian Murray, Mary Doyle
Venue: Tribunal Room, RTB, Floor 2, O”Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 11 May 2016 at 10:30
Attendees: Peter Sinclair (Appellant Tenant)
Patrick O’Shea (Respondent landlord)
In Attendance: DTI Stenographer/Loggers
1. Background:
On 03 July 2015 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 12 November 2015. The Adjudicator determined that:
The Respondent Tenants shall pay the sum of €1,100 to the Applicant Landlords
within 28 days of the date of issue of the Order, being rent arrears of €1,900 and
damages of €1,100 for damage in excess of normal wear and tear caused to the
dwelling and for breach of the Respondent Tenant’s obligations pursuant to s. 16(f) of
the Residential Tenancies Act 2004, having deducted the entire of the justifiably
retained security deposit of €1,900 in respect of the tenancy of the dwelling at 88
Clon Brugh, Aikens Village, Sandyford, Dublin 18.
Subsequently the following appeal was received from the Tenant on 15 December 2015.
The grounds of the appeal were Unlawful Termination of Tenancy (Illegal Eviction) and
Other. The appeal was subsequently approved.
The RTB constituted a Tenancy Tribunal and appointed Brian Murray, Nesta Kelly, 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 11 May 2016 the Tribunal convened a hearing at Tribunal Room, RTB, Floor 2,
O”Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
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 Appellants) 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 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.
5. Submissions of the Parties:
He said that he was appealing against the amount of damages in respect of wear and
tear allowed by the adjudicator in the determination following the adjudication hearing of
the 12th November 2015, he said that in any case, the amount allowed of €1,100 was
miscalculated by a wrong addition and should have been €1,050. In respect of this
miscalculation aspect of the adjudicators report, the Respondent Landlord was in
agreement. He then proceeded to deal with each item. Firstly ,while accepting that glitter
had been put on the walls by his daughter, he did not accept the invoiced amount of €125
as produced by the Landlord for cleaning and removing. He said his estimate of the cost
was €10. He said that while he accepted that his child had written on the walls as
evidenced by photographs produced by the Landlord; on the basis of that estimate of the
cost being €5 per square metre, he said it was only an area of 2 square metres and thus
the cost should only be €10. However, the Tenant contended that any glitter left behind
was not beyond normal wear and tear.
On being questioned by the Tribunal as to whether the letting agents Sherry Fitzgerald
had on several occasions given him the opportunity to rectify the damage ,he said that
this had been the case, but that he declined to do so on the basis that he did not believe it
amounted to anything beyond normal wear and tear. He further said that in any case he
only noticed this writing on the wall on the day that he was vacating the dwelling.
In respect of the claim of €300 by the Landlord in respect of the computer table again as
shown in photographs; he said that at the start of the tenancy he did not need this table
and thus dismantled it and removed it to the attic. He did not re-assemble it on vacating
the dwelling. He further said that on the Landlords own admission that this table was
several years old and had been used by previous tenants at the dwelling. He said the
cost of replacement would be €30 as he had looked up the price of similar type tables on
various websites.
In respect of the Marble coffee table which the Landlord claimed was damaged, he said
this table was unsafe as he had small children and the marble top was not secured to its
base. He said because of this being a danger, he removed the top, wrapped it in “Bubble
paper” and removed it all to the attic. He did not accept responsibility for any damage as
shown in photographs produced by the Landlord. The Tenant confirmed that he attended
a joint inspection of the Dwelling with the Landlord’s agent the day after he had vacated
the Dwelling.
He then went on to refer to a previous adjudication hearing held in November 2014 in
relation to the validity of a notice of termination and costs being awarded to the Landlord
when he withdrew his appeal and also the question of the Landlords brother taking up
residence at the dwelling. It was pointed out to him that he had withdrawn his appeal and
that the matter had ended. He said that he had done this in “good faith” and that it was
unfair that the landlord had been granted his costs in respect of this withdrawal by
himself. He made several comments of a derogatory nature against the Landlord during
his evidence and matters got very heated between the parties during the hearing but it
was pointed out to both parties that nothing was to be gained by these exchanges and
that they should abide by the instructions of the Chair and confine themselves to giving
evidence of the facts and not pursue exchanges of a personal nature.
Respondent Landlord’s Case:
He said that he had provided evidence by way of photographs and invoices in respect of
damages caused by the Tenant over and above normal wear and tear ;and in particular
he had not given permission to have items removed from their location in the house. He
said that the Tenant had built a shed in the garden and he believed that he had stored
various items of furniture there thus causing them to be damaged. He said that the
computer table had been bought several years ago as a flat pack and had been used by
previous tenants. His claim was for €300, although he did not support this by any
documentary evidence. In relation to the marble coffee table, he had bought this many
years ago in Singapore and had it shipped to the dwelling. He felt that the cost of
replacing it by buying a new one in the East would be about €1,000. He accepted that the
marble table top had not been damaged as it had been “bubble wrapped” and stored, but
said that it had a rosewood base which was broken and would have to be replaced at
cost.
He said that a breach of trust had occurred between the Parties and that matters had
become very heated and that he felt insulted by the derisory amounts that the tenant was
accepting in relation to the damaged items. In reply to the Tenant bringing up the
question of his brother intending to move into the dwelling, he said that the Notice of
Termination in the earlier adjudication was held to be valid and that his brother was going
to look after the house as he and his wife lived abroad for most of the time. It was again
pointed out to him that no benefit was be gained by heated personal remarks between the
Parties.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1.The tenancy commenced on the 27th August 2011
2. The monthly rent was €1,900
3. The tenancy ended on the 30th March 2015
4. A deposit of €1,900 was paid .
5.The Appellant Tenant accepts that he owed €1,900 rent for March 2015
which was covered by the retention of the deposit.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons thereof, are set out
hereunder.
7.1 Finding: The Tribunal find that the deposit of €1,900 had been justifiably retained.
Reasons:
1. That the Appellant Tenant accepted that he owed rent of €1,900 for the month of
March 2015 and that the deposit had been justifiably retained in this respect.
7.2 Finding:
The Tribunal finds that any matters sought to be raised by the Appellant Tenant in
relation to a previous Adjudication held on the 7th November 2014 were not matters that
were to be determined by the Tribunal.
Reasons:
1. The Tenant had, by his own admission, withdrawn his appeal in relation to the
Adjudication held on the 7th November 2014 and the matter was closed.
2. The doctrine of “Res Judicata” applies.
7.3 Finding:
The Tribunal finds that the Tenant accepted that damage that was caused by writing and
glitter placed on the walls was damage over and above normal wear and tear and allows
the invoiced amount for cleaning and removing damage caused by glitter as €125 and
allows a further amount of €200 towards the cost of repainting in respect of this damage.
The Tribunal accepts the Tenant’s figure of €30 to replace the computer table and further
allows the sum of €300 towards the cost of restoring the damage to the rosewood coffee
table.
Reason
1.The Tenant was given an opportunity to rectify the damage caused to the walls, but
declined to do so. Further, by removing the coffee table from its location, on the balance
of probabilities ,the Tribunal accepts the Landlord’s evidence, supported by photographs,
that the said table was not damaged at the commencement of the tenancy and thus
considers the amount of €300 as the correct amount to be allowed towards its restoration.
Total amount allowed being €655.
2.Section 16(f) of the Residential Tenancies Act 2004 applies in this respect.
8. Determination:
Tribunal Reference TR1215-001505
In the matter of Peter Sinclair, Sinead Sinclair Nee McCoy (Tenant) and Patrick
O’Shea, Angelina O’Shea (Landlord) the Tribunal in accordance with section 108(1)
of the Residential Tenancies Act 2004, determines that:
The Residential Tenancies Board in accordance with Section 108(1) of the Residential
Tenancies Act 2004,determines that the Appellant Tenants shall pay the sum of €655
to the Respondent Landlords within 28 days of the date of issue of the Order being
damages for damage in excess of normal wear and tear in respect of the tenancy of
the dwelling at 88,Clon Brugh, Aitkins Village, Sandymount,Dublin 18
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
13 May 2016.
Signed:
Nesta KellyChairperson
For and on behalf of the Tribunal.

 

Toher v Swan

 

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0815-001336 / Case Ref No: 1214-15842
Appellant Landlord: Daniel Toher
Respondent Tenant: Tony Swan, Joanne Wells
Address of Rented Dwelling: The Studio, 89 Sorrento Road, Dalkey , Dublin, A96XC64
Tribunal: John Tiernan (Chairperson)
Mary Doyle, Louise Moloney
Venue: Board Room, PRTB, 2nd Floor, O’Connell Bridge, D’Olier Street, Dublin 2
Date & time of Hearing: 30 October 2015 at 10:30
Attendees: Daniel Toher (Appellant Landlord)
Francis Rowan, FX Rowan & Co Solicitors, (Representative of the Appellant Landlord)
Kenneth Togher, Barrister at Law (Representative of the Appellant Landlord)
Stephen Maughan (Witness)

Tony Swan (Respondent Tenant)
Dermot O’Neill (Witness)
Michael Swan (Accompanying Respondent Tenant)

In Attendance:
Gwen Malone Stenographers
1. Background:
On 17th December 2014 the Tenants made an application to the Private Residential Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. On 22nd May 2015 the Landlord submitted a counter case pursuant to Section 78 of the Act. The matter was referred to an adjudication process which took place on 22nd June 2015.
In the matter of Tony Swan and Joanne Wells [Applicant/Respondent Tenants] and
Daniel Toher [Respondent/Applicant Landlord], the adjudicator in accordance with Section 97(4)(a) of the Residential Tenancies Act, 2004 determines that:
1. The Respondent/Applicant Landlord shall pay the total sum of €2,175 to the Applicant/Respondent Tenants, within 7 days of the date of issue of the Order, being the entire of the unjustifiably retained security deposit of €1,175 (plus damages of €500 for the consequences of retaining the said deposit and further damages in the sum of €500 for breach of his obligations pursuant to section 12 of the Residential Tenancies Act, 2004) in respect of the tenancy of the dwelling at The Studio, 89 Sorrento Road, Dalkey, Co. Dublin.
2. The Respondent/Applicant Landlord’s counterclaim in respect of the tenancy of the dwelling at The Studio, 89 Sorrento Road, Dalkey, Co. Dublin, is not upheld.
Subsequently on 27th August 2015 the Board received a valid Appeal from the Landlord respect of that Determination.
The PRTB constituted a Tenancy Tribunal and appointed Mary Doyle, Louise Moloney and John Tiernan 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 13th October 2015 at 14.30 hours the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
On 30th October 2015 at 10.30 hours the Tribunal resumed the hearing at Floor 1, Wynn’s Hotel, 35 – 39 Lower Abbey Street, Dublin 1.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
Day 1:
• Original Invoice from Integral Security submitted by Appellant Landlord
• Copy of phone records for 28th September 2014 submitted by Respondent Tenant
Day 2:
• 1 Photograph submitted by the Respondent Tenant
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 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 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:
Submissions:
In this report Mr Tony Swan is referred to as the ‘Respondent Tenant’. Ms Joanne Wells who was a co-tenant in the dwelling and who was not in attendance at the Tribunal Hearing is referred to as the ‘second named Respondent or ‘his partner’.
Evidence of the Appellant Landlord:
Mr Togher, Barrister on behalf of the Appellant Landlord advised the Tribunal at the outset of the hearing that his client accepted the ruling of the adjudicator that the Notice of Termination that he had issued was invalid. He also said that the Appellant Landlord was not making any claim in respect of arrears of rent or to the termination of the fixed term tenancy agreement that had been terminated early or any other lesser period.
The Appellant Landlord said that the tenant took up occupation of the dwelling on 15th August 2014. He said that about a month in to the tenancy the Respondent Tenant made a complaint to him that there was a smell of damp and that some areas of the dwelling were cold. He said that on inspection he formed the opinion that there was a leak in the plumbing that needed investigation. He gave evidence that he engaged a plumber who established that two of the jets on the Jacuzzi had small leaks and the plumber carried out a temporary repair on these with a view to coming back to carry out a more complete investigation and any necessary repairs in approximately eight days. He said that the Respondent Tenant had told him that at the commencement of the tenancy the second named Respondent Tenant had taken the Jacuzzi jets apart to clean them.
The Appellant Landlord said that on the day before the plumber returned he got a phone call from the first named Respondent Tenant to the effect that there was an urgent issue to be dealt with at the dwelling. He said that the respondent Tenant pointed out some barely visible mould spots on the timber bed frame. He said that he purchased a dehumidifier for the dwelling and explained to the Appellant Tenant that the plumber was arriving the next day and he would install additional heating to dry the place out quickly. He said that when the plumber came he checked out all of the plumbing and installed underfloor pipes and 4 radiators in the dwelling. He explained that the boiler for this heating system was in the adjacent dwelling in which he himself resided. He said that he considered the new heating system to be over and above the original electric system in the dwelling and that it was installed with the intention of drying out any dampness that arose from the leak. He said that it was a complementary extra-over heating provision to that which had already been there. He gave evidence that the Respondent Tenant had requested him to leave the new heating system running. He explained that there were valves on the radiators to turn them on or off but that the Respondent Tenants could not control the time settings on the boiler itself he could not turn the heat on at the boiler.
The Appellant Landlord submitted that the following utility charges in the total sum of €141 were incurred at the dwelling and were not paid in respect of a) Electricity in the sum of €26 for the last 10 days of the tenancy b) Gas in the sum of €24 for the last 10 days of the tenancy c) Refuse Collection in the sum of €26 d) Alarm Monitoring in the sum of €35 being the apportioned cost for the entire period of the tenancy and e) Satellite Television in the sum of €30 being 2 months at a rate of €15 per month.
He said that at the outset he had explained to the Respondent Tenants how the electricity, gas and refuse collection would be a shared cost with his own dwelling which included another resident. He explained that the electricity for the dwelling was routed through his own residence and that there was a sub-meter in the dwelling which would allow for a calculation of the number of units of electricity used but that the standing charges were to be shared. He submitted calculations in respect outstanding amounts.
He submitted a document that he said was left in the dwelling to advise the tenants on the operation of the alarm system. In response to a query from the Tribunal he said that he had not specifically explained to the Respondent Tenants that the part of the cost of alarm monitoring would be their responsibility.
The Appellant Landlord said that he had an arrangement whereby the Satellite TV was free for the first two months of the tenancy on the basis that it would be continued for the remaining ten months of the tenancy agreement. He argued that in the circumstances whereby the Respondent Tenants submitted a Notice of Termination after just two months of the tenancy the two free month facility was also forfeited. He submitted that this amounted to two months at a rate of €15 per month which amounts to €30.
The Appellant Landlord submitted a claim including damages and reimbursement in respect of a number of other items as follows:
1) Key: The Appellant Landlord said that the Respondent Tenant had neglected to return a key to the dwelling despite a number of requests to him to do so. As a result he said that he incurred expenditure of €176 on the engagement of a locksmith for which cost he submitted documentation.
2) Damage to Jacuzzi: The Appellant Landlord said that following notification to him of cold and damp in the dwelling he discovered a leak that emanated from the Jacuzzi. He said that his plumber had found two of the jets to be leaking. He gave evidence that the Appellant Tenant told him that the second named Respondent Tenant had prior to that cleaned the jets on the Jacuzzi and on this basis he considered that the Respondent Tenants should be responsible for the repair of the Jacuzzi which cost €120.
3) Engineers Report on Malicious Alarm complaint: The Appellant Landlord said that the Respondent Tenants had caused him to engage a service engineer at a cost of €136 to inspect the alarm system on the dwelling following a stormy night when the alarm was allegedly triggered accidentally possibly by the action of the wind. He said that the Respondent Tenants had alleged that the alarm was faulty and that he had no choice but to have the matter investigated. He said that he considered the Respondent Tenants responsible for the expenditure because the service engineer had found that there was no fault with the system.
4) Malicious damage caused to Electrician’s van: The Tribunal noted the written evidence that was submitted relating to an alleged incident involving criminal damage to a vehicle for which the Appellant Landlord gave evidence that he compensated the vehicle owner and wished to claim the amount from the Respondent Tenant. The Tribunal noted that the alleged incident was reported to the Gardaí. The Tribunal considers any such matter to be outside of the remit of the PRTB and the Residential Tenancies Act 2004 and does not make any finding on this element of the Appellant Landlord’s claim.
5) Vandalised Mature plants replacement by garden company: The Appellant Landlord stated that the Respondent Tenant had damaged plants in a garden bed despite his specific instructions when giving consent to some work on the garden bed to confine his replanting endeavours to a specific four feet length of the bed. He said that the Respondent Tenants had ignored his directions and that this resulted amongst other things in the removal of a particular ten year old variegated ivy creeper which had significant sentimental value for him and was irreplaceable. He submitted evidence to demonstrate that the cost of restoring and replanting the area will amount to €200 which sum he said he was seeking in damages from the Respondent tenants.
6) Service call regarding claims on cooker and shaving light: The Appellant Landlord gave evidence that he had incurred costs of €85 in engaging an electrician in response to false complaints made by the Respondent Tenants regarding the functionality of one of the rings on the cooker and the shaving light. He said that both items were found to be working perfectly and submitted that he should be reimbursed for his outlay.
7) Additional CCTV camera: The Appellant Landlord gave evidence that following the alleged incident wherein an electrician’s van that was parked outside the dwelling was vandalised he was advised by a member of An Garda Síochána to install an extra CCTV camera. He gave evidence that this cost him €50 and thus as he considered the Respondent Tenant responsible for this alleged incident, he was claiming the said sum in damages from the Respondent Tenant.
8) Costs to re-let dwelling: The Appellant Landlord claimed that he should be entitled to be reimbursed for the €60 cost of re-advertising the letting of the dwelling because the fixed term tenancy had been terminated early.
9) Cleaning/Replacing removed items: The Appellant Landlord gave evidence that he had to engage a cleaner to clean the dwelling following the vacation of the Respondent Tenants and that this had cost him €30. He gave evidence that he had handed the dwelling over to the Respondent Tenants in a clean condition.
10) Washing Machine: The Appellant Landlord said that there was a circuit board fault in the washing machine following the vacation of the dwelling by the Respondent Tenants. He said that he purchased a new machine at a cost of €249 because the cost of inspection and parts would have been either €130 or €200 and he considered it prudent to purchase a new one.
11) Fridge: The Appellant Landlord said that the Respondent Tenant had complained about the functionality of the fridge to his electrician. As a consequence he said that he engaged a Manufacturer’s Agent who found nothing wrong with the fridge. He submitted that he had paid cash for this engagement but that it cost him €40 for which he had no receipt.
12) Architects Report: The Appellant Landlord said that because the Respondent Tenant had sought an inspection of the dwelling by Dun Laoghaire Rathdown County Council (DLRCC) he was obliged to engage the services of an Architect to refute the contents of the report which report had not been served upon him but the contents of which he became aware of through the current proceedings. He said that the content of the report had been erroneous and factually incorrect. He submitted his claim for damages from the Respondent Tenants in the sum of €600 which he said was the cost of engaging the Architect.
13) Removing Smoke Alarm Batteries: The Appellant Landlord said that he purchased new batteries for the smoke alarms in the dwelling at the commencement of the tenancy and that these were interfered with in the course of the tenancy.
14) Making false claims that there were rodents in the dwelling: The Appellant Landlord said that the Respondent Tenant made a false claim that there were rodents in the dwelling. He said that that there was no evidence of any rodents in the dwelling.
In his written submissions the Appellant Landlord claimed that the Respondent Tenant had also a) caused police reports to be filed, b) used the address of the dwelling to claim social welfare while working, c) demanded money and threatened the Appellant Landlord, looking for pay-off to leave d) Returned to the dwelling after termination of the tenancy and caused a disturbance.
Evidence of expert witness Stephen Maughan:
The witness gave evidence relating to the dwelling with particular reference to matters raised in the (DLRCC) report dated 14th October 2014 that was submitted by the Respondent Tenant relating to the dwelling. He said that he carried out an inspection of the dwelling on 22nd September 2015. He clarified to the Tribunal that there was no evidence of any new work having been undertaken in the dwelling in the recent past.
He said that the roof is a mono-pitch roof and that therefore there is no need for a gutter on the upper side as intimated in the DLRCC report. He said there is no defect in the roofing structure. He gave evidence that the DLRCC report is factually incorrect in that the floor in the bedroom of the dwelling is not at the same level as that of the contiguous external decking. He pointed to photographic evidence showing a precast concrete threshold and said that the rise between levels is of the order of 40 to 50mm. He said that there were batteries in the smoke alarms in the dwelling.
He said that he is aware that the electrical LCB unit has been certified as being compliant with the National Rules for Electrical Installation. He gave evidence that both the background and purge ventilation in the dwelling are in compliance with requirements. He said that the electric hob had all 4 rings in working condition. He gave evidence of the electric heating in the rooms being a combination of both fixed and portable units. He said that the gas central heating system which is complementary to the original system is controlled from the adjoining property and that this arrangement is inappropriate. He said that there was evidence that the jets on the Jacuzzi had been repaired at some time in the past. He gave evidence of having tested the area for the presence of moisture and confirmed that it was completely dry. He said that there was no evidence of mould or damp in the dwelling.
Evidence of Respondent Tenant – Tony Swan
The Respondent Tenant stated that both he and his partner the second named Respondent Tenant moved in to the dwelling on 15th August 2014. He gave evidence that he had authority to Act on behalf of the second named Respondent Tenant. He gave evidence that they purchased a number of items of furniture for the dwelling including a bed, a table, chairs and a sofa. He said it was not very clean and that they had thoroughly cleaned the dwelling such that it was pristine and had used a steamer in their efforts.
He said that in the first two weeks of the tenancy he trimmed some plants and repaired the fence with the Appellant Landlord’s consent and that it was untrue to say that the Appellant Landlord had instructed him to confine his gardening to a specific four feet length of the flowerbed.
He said that approximately four weeks in to the tenancy they noticed that the dwelling became cold and he found evidence of mould on the timber bed frame. He said that he had expected the Appellant Landlord to engage a mould expert to investigate what the origin of the problem was. He said that he had had an experience with mould in a previous dwelling and that it had made both his partner and himself sick and that they had lost €5,000 worth of his possessions. He said that prior to assuming the tenancy he had specifically asked the Appellant Landlord about mould in the dwelling and he had been assured by him that it was warm and dry. He gave evidence that there was mould on the mattress which had been purchased new at the commencement of the tenancy and that mould also appeared on shoes and on the window sill.
He said that the dwelling had four separate extractor fans and the Appellant Landlord had issued advice to him to the effect that in the winter months when the air-vents in the Velux windows needed to be closed he should run the extractor fans for at least two hours each day. He said that the extractor fans were noisy and interrupted his ability to watch television.
He gave evidence that he used an arrangement with four candles and an inverted flower pot to generate heat in the bedroom. He denied that this constituted a fire hazard. He said that the heating in the dwelling was inadequate and that the electric panel heaters were not much use.
The Respondent Tenant said that the Appellant Landlord had never provided them with full details of the shared elements of electricity, gas and refuse collection bills and that he had never mentioned payment being required in respect of the security system and satellite TV.
The Respondent Tenant rebutted the claims of the Appellant Landlord including damages and reimbursement in respect of a number of items as follows:
1) Key: The Respondent Tenant said that he had returned all of the keys he had been provided with and denied that he had omitted to return one such key.
2) Damage to Jacuzzi: The Respondent Tenant said that he never had a conversation with the Appellant Landlord to say that the second named Respondent Tenant had removed and cleaned the Jacuzzi jets. He said that neither he nor his partner would know how to approach such a task and that the only cleaning that they had undertaken in relation to the Jacuzzi was to apply a proprietary spray cleaner and a cloth at the time they moved in subsequent to any usage of the Jacuzzi.
3) Engineers Report on Malicious Alarm complaint: The Respondent Tenant said that the alarm had malfunctioned and he reported this to the Appellant Landlord who in turn engaged a service engineer to inspect the system. He did not consider that he should be responsible for the cost of this inspection.
4) Malicious damage caused to Electrician’s van: The Respondent Tenant denied that he should have any responsibility for this alleged incident.
5) Vandalised Mature plants replacement by garden company: The Respondent Tenant said that the Appellant Landlord had given him permission to work on the flower bed and that he had not confined his consent to a c.4 feet length of the bed as he had stated.
6) Service call regarding claims on cooker and shaving light: The Respondent Tenant said that one ring on the hob was coming on and off and that he was not familiar with the operation of Halogen rings on the cooker. He said that the second named Respondent Tenant had noted that the shaving light in the bathroom was apparently faulty. He said that he had advised the DLRCC inspector of these observations but that he should not be held liable because as a tenant he is entitled to make a request for investigation of possible transgressions of the relevant standards or other faults in the dwelling.
7) Additional CCTV camera: The Respondent Tenant said that it was a matter of choice for the Appellant Landlord to erect extra security if so suggested by the Gardaí. He said that there was no evidence to support the contention of the Appellant Landlord that the cost of such security should be borne by the Respondent Tenants
8) Costs to re-let dwelling: The Respondent Tenant said that any cost of re-letting was a normal landlord function. He pointed to the fact that the Dwelling was vacant for just a matter of days and also to the fact that the Appellant Landlord had issued a Notice of Termination, albeit invalid, prior to his own Notice of Termination to the Appellant Landlord.
9) Cleaning/Replacing removed items: The Respondent Tenant said that they had thoroughly cleaned the dwelling on vacation of the tenancy. He said that he accidently packed some belongings in to a storage container belonging to the Appellant Landlord which he valued at approximately €1.50.
10) Washing Machine: The Respondent Tenant said that the washing machine was working when they vacated the tenancy and that they had used it on the final day prior to departure.
11) Fridge: The Respondent Tenant said that he made a remark to the Appellant Landlord’s electrician regarding the fridge but did not consider that there would be a necessity to incur costs in engaging expert opinion on the matter.
12) Architects Report: The Respondent Tenant said that he was entitled to request an inspection of his rented dwelling by the Local Authority. He said that any costs arising in engagement of an Architect to prepare a response to the inspection report by DLRCC or for the purpose of the Dispute process were a matter for the Appellant Landlord and not the Respondent Tenants.
13) Removing Smoke Alarm Batteries: The Respondent Tenant said that he did not interfere with the smoke alarm batteries in the dwelling.
14) Making false claims that there were rodents in the dwelling: The Respondent Tenant said that neither they had never made any claim relating to the presence of rodents in the dwelling.
The Respondent Tenant said that because he suspected that the Appellant Landlord was entering the dwelling while they were out he used to place a mattress against an internal door. If its position was altered when they returned this would indicate an intrusion. He said that on one occasion the mattress was not in the same position. When asked by the Tribunal why he had a photograph of the mattress in position prior to leaving the dwelling and no photograph to show its altered position on return he said he did not think that he would need it. He said that on another occasion the second named Respondent Tenant was at home for the day due to illness and she became aware that a person had tried the door of the dwelling with a key. In response to a further question from the Tribunal he said that she had not seen the Appellant Landlord or any other person on that occasion. He said that on another occasion the Appellant Landlord entered the bedroom without permission in the course of checking the newly installed radiator.
The Respondent Tenant denied that he had ever behaved in a way that was anti-social in or in the vicinity of the dwelling and denied that any persons invited to or visiting the dwelling on his or the second named Respondent Tenant’s part ever behaved in an anti-social way.
The Respondent Tenant said that despite a number of requests and despite a promise on the Appellant Landlord’s part to return his security deposit he has not received any refund.
The witness on behalf of the Respondent Tenant said that he and another person came to the dwelling at the Respondent Tenant’s request on the day that the Appellant Landlord and the electrician were due to attend. He said that he was aware that the Respondent Tenant who is his nephew felt intimidated in the circumstances and his purpose was to ‘be there as a presence’. He said that there was no conflict and no raised voices. He said that he did not detect any bad feelings in the room.
6. Matters Agreed Between the Parties
1) That the tenancy commenced on 15th August 2014 under a 12 month fixed term tenancy agreement;
2) That the tenants vacated the dwelling on 24th October 2014;
3) That the rent was €1,175 per month;
4) That the rent was paid up to and including 14th November 2014;
5) That the tenants paid a security deposit of €1,175;
6) That the landlord still retains the full security deposit.
7. Findings and Reasons:
Having regard to all of the evidence provided in both written, oral, photographic and digital formats the Tribunal has made the following findings based upon the balance of probabilities:
Finding No.1:
The Appellant Landlord has unlawfully retained €1,090 of the Respondent Tenant’s deposit of €1,175. The Appellant Landlord shall refund the balance of the deposit to the Respondent Tenants’ within 7 days of the date of issue of the Order by the Board.
Reasons:
In accordance with the provisions of section 12(4) of the Act a landlord may withhold a deposit, or part of it, for rent arrears, the cost of remediating damage in excess of normal wear and tear or for arrears of utility bills. The evidence to the Tribunal has been and it was common case amongst the parties that the Appellant Landlord was still in possession of the Respondent Tenants’ security deposit in the sum of €1,175.
The Appellant Landlord accepted that the rent was fully paid up to 14th November 2014 and that he re-let the dwelling very quickly in a matter of days after that.
In accordance with Findings Nos 2 and 3 below the Tribunal considers that the only matters for which the Appellant Landlord had retained the monies from the deposit that justified retention of any part of the Respondent Tenant’s deposit were in respect of the unpaid utility bills for electricity, gas and bin collection for the final ten days of the tenants’ occupation of the dwelling as well as the cost of a replacement a storage container. Thus the portion of the security deposit that was justifiably withheld by the Appellant Landlord amounted to the total sum of €85 being comprised of the sums of €26 for electricity, €24 gas, €26 for bin collection and €9 for the replacement of the storage container. Consequently the Tribunal finds that the amount of €1,090 has been unjustifiably withheld.
Finding No. 2
The Tribunal finds that the Appellant Landlord’s claim for damages in respect of the replacement value of a storage container in the dwelling that was removed by the Respondent Tenants is upheld. The Tribunal awards the sum of €9 to the Appellant Landlord in respect of this item.
Reasons:
The Appellant Landlord submitted that a 24 litre storage container was removed from the dwelling and that this had cost him €9 to replace. The Respondent Tenant accepted that he had removed a storage container in error as he possessed similar containers himself. The Tribunal accepts the evidence of both parties in relation to the storage container. The Tribunal further accepts that the replacement cost of the storage container was €9 and awards this sum to the Appellant Landlord in respect of the damages for its replacement.
Finding No 3
The Tribunal finds that the Appellant Landlord’s claims in respect of damages for the items listed below are not upheld.
1. Keys: There was a conflict of evidence between the parties in relation to this matter. The Appellant Landlord said that the Respondent Tenants had neglected to return a key to the dwelling despite a number of requests to him to do so. The Respondent Tenant said that he returned all keys that he had been provided with to the dwelling as requested by the Appellant Landlord at the end of the tenancy. The Tribunal considers that the Appellant Landlord did not submit sufficient evidence to support his claim that the Respondent Tenants had failed to return the key.
2. Damage to Jacuzzi: There was a conflict of evidence between the parties in relation to this matter. He gave evidence that the Appellant Tenant told him that his partner had cleaned the jets on the Jacuzzi and on this basis he considered that the Respondent Tenants should be responsible for the cost of repair of the Jacuzzi. The Respondent Tenant denied he had ever told the Appellant of such and said that they had cleaned the Jacuzzi with a bathroom cleaning spray and did not remove jets as alleged by the Appellant Landlord. The Tribunal considers that the Appellant Landlord did not adduce sufficient evidence to establish that the leaks had occurred due to any actions on the part of the Respondent Tenants and therefore does not accept the Appellant Landlord’s claim in this regard.
3. Engineers Report on Malicious Alarm complaint: The Appellant Landlord said that the Respondent Tenants had caused him to engage a service engineer at a cost of €136 to inspect the alarm system on the dwelling following a stormy night when the alarm was allegedly triggered accidentally possibly by the action of the wind. He said that the Respondent Tenants had alleged that the alarm was faulty and that he had no choice but to have the matter investigated. He said that he considered the Respondent Tenants responsible for the expenditure because the service engineer had found that there was no fault with the system. The Tribunal does not consider the Respondent Tenants to be responsible for such call out and inspection charge and deems that such charge falls in to the category of normal ongoing property management overhead.
4. Malicious damage caused to Electrician’s van: The Tribunal noted the evidence that was submitted relating to an alleged incident involving criminal damage to a vehicle for which the Appellant Landlord gave evidence that he compensated the vehicle owner and wished to claim the amount from the Respondent Tenant. The Tribunal notes that the alleged incident was reported to the Gardaí. The Tribunal considers any such matter to be outside of the remit of the PRTB and the Residential Tenancies Act 2004 and does not make any finding on this element of the Appellant Landlord’s claim.
5. Vandalised Mature plants replacement by garden company: There was a conflict of evidence in regard to the detail of this element of the dispute. The Tribunal accepts the evidence of the Respondent Tenant that he had a consent from the Appellant Landlord to carry out works on the garden bed. Accordingly the Tribunal does not award the costs claimed on the part of the Appellant Landlord.
6. Service call regarding claims on cooker and shaving light: The Tribunal does not consider that the call-out fee for a service engineer/electrician in respect of the cooker and shaving light can be deemed a legitimate charge for the Respondent Tenants.
7. Additional CCTV camera: The Tribunal does not accept that the Respondent Tenant bears any liability under the Residential Tenancies Act for the cost of installing an extra security light at the dwelling on the advice of the Gardaí
8. Costs to re-let dwelling; The Tribunal considers that in the circumstances where the Appellant Landlord himself had commenced the process to terminate the tenancy he is not justified in seeking reimbursement of the re-advertising fee of €60.
9. Cleaning/Replacing removed items: The Appellant Landlord gave evidence that he had to engage a cleaner to clean the dwelling following the vacation of the Respondent Tenants and that this had cost him €30. There was a conflict of evidence in relation to this matter and the Respondent Tenant gave evidence that they had cleaned the dwelling thoroughly. The Tribunal is also conscious of the evidence of the Appellant Landlord that he delivered the dwelling to the tenants in a reasonably clean condition. The Tribunal considers that the Appellant Landlord did not submit sufficient evidence to uphold his claim for damage in excess of normal wear and tear in respect of this item.
10. Washing Machine: The evidence of the Appellant Landlord was that there was a circuit board fault in the washing machine following the vacation of the dwelling by the Respondent Tenants. He said that he purchased a new machine because the cost of inspection and parts would have been either €130 or €200 and he considered it prudent to purchase a new one. In the absence of evidence of damage in excess of normal wear and tear such as interference or wilful neglect on the part of the Respondent Tenants the Tribunal does not consider such the defect as described falls into the category of damage in excess of normal wear and tear. The Tribunal also has had regard to the evidence of the Respondent Tenant that they had used the washing machine on the day they vacated the dwelling and that it was working.
11. Fridge: There was a conflict of evidence between the parties in relation to this matter. The Appellant Landlord said that the Respondent Tenant had complained about the functionality of the fridge to his electrician. As a consequence he said that he engaged the Manufacturer’s Agent who found nothing wrong with the fridge. He submitted that he had paid cash for this engagement but that it cost him €40 for which he had no receipt. The Respondent Tenant said that he commented on the presence of mould on the fridge to an electrician who was attending the dwelling and that he did not request repair or inspection. The Tribunal considers that the Appellant Landlord did not submit sufficient evidence to uphold this claim.
12. Architects Report: The Tribunal does not consider that the Respondent Tenants bear any responsibility for the €600 cost of this report. Firstly, notwithstanding that some conclusions of the DLRCC inspection report may have been erroneous, the Tribunal considers that any such matter was a matter between the Appellant Landlord and the Housing Authority, DLRCC. The Tribunal accepts that a tenant is entitled to request an inspection. Furthermore the Tribunal considers that the report which was adduced in evidence in the dispute process was one as referred to in s.5(3) of the Act being a cost incurred of a professional kind by a person with technical expertise that was incurred wholly or mainly with the provision of evidence at the proceedings. The Tribunal considers that no exceptional circumstances exist to justify a case for the referral of such cost to the Board under s.5(4) of the Act with a recommendation in favour of such payment of costs.
13. Removing Smoke Alarm Batteries: The Tribunal accepts the evidence of the Respondent that they did not interfere with the smoke alarm batteries in the dwelling.
14. Making false claims that there were rodents in the dwelling. There was a conflict of evidence in relation to this matter. The Tribunal accepts the evidence of the Respondent Tenant that they did not make any allegation of the presence of rodents in the dwelling.
Finding No.4
The Tribunal finds that the Appellant Landlord was in breach of his obligations under s.12(1)(b) of the Act in regard to the standard and maintenance of the dwelling. The Tribunal awards damages in the sum of €100 to the Respondent Tenants in respect of the consequences of such breaches.

Reasons:
The Tribunal has had regard to the evidence of both parties in this case that there was no fixed independently operated heating appliance in the bedroom of the dwelling. This constituted a breach of Section 18 of the Housing (Miscellaneous Provisions) Act 1992 and the Housing (Standard of Rented Dwellings) Regulations 2008. The Tribunal has had regard to the evidence of inconvenience and distress suffered by the Respondent Tenants as a result of this breach.
The Tribunal has also taken account of the prompt and comprehensive response of the Appellant Landlord to the issue of the leak that arose in the dwelling and to the solution he devised in installing radiators in the dwelling including one in the bedroom. However the Tribunal also notes that since the timing controls on the gas fired boiler were not accessible to the Respondent Tenants they did not have total control over the heating system and this caused inconvenience and distress for them.
Finding No. 5
The Tribunal finds that the Appellant Landlord did not deny peaceful occupation of the dwelling to the Respondent Tenants.
Reason(s): There was a conflict of evidence in relation to this matter. The Respondent Tenant alleged that the Appellant Landlord had entered the dwelling on at least two occasions without permission. The Respondent Tenant did not adduce sufficient evidence to support his contention that the Appellant Landlord had entered the dwelling without his consent. The Appellant Landlord instanced each occasion on which he had been in the dwelling which occasions he described as being with the Respondent Tenants’ consent in connection with repairs at the Respondent Tenants’ request or to read the meter. The Tribunal accepts the evidence of the Appellant Landlord that on any occasion when he entered the dwelling he did so with the consent of the Respondent Tenant.
Finding No.6
The Tribunal finds that the Respondent Tenant was not in breach of his obligations under the provisions of s.16(h) of the Act did not engage in or allow others engage in anti-social behaviour in or in the vicinity of the dwelling.
Reason(s):
The Appellant Landlord alleged that the Respondent Tenant behaved in a manner that was anti-social towards him and his tradesmen. There was a conflict of evidence on this matter. The Tribunal has had regard to the evidence of witness Mr Dermot O’Neill whom the Tribunal found to be a reliable witness. The Tribunal considers that the Appellant Landlord has not submitted sufficient evidence to uphold this claim in respect of anti-social behaviour as defined under s.17 of the Act.
Finding No.7
The Tribunal finds that it has no jurisdiction under the Act to make findings arising from the Appellant Landlord’s claims that the Respondent Tenants had a) caused police reports to be filed b) used the address of the dwelling to claim social welfare while working c) demanded money and threatened the Appellant Landlord, looking for pay-off to leave d) Returned to the dwelling after termination of the tenancy and caused a disturbance.
Reason(s): The Tribunal considers that the matters do not fall within the jurisdiction of the Residential Tenancies Act.
8. Determination:
Tribunal Reference TR0815-001336
In the matter of Daniel Toher (Landlord) and Tony Swan, Joanne Wells (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 €1,190 to the Respondent Tenants within 7 days of the date of issue of the Order by the Board being the balance of the Respondent Tenants’ deposit of €1,175 plus €100 for the consequences of breach of landlord obligations having deducted €85 in respect of breach of tenant obligations, all in respect of the tenancy of the dwelling at The Studio, 89 Sorrento Road, Dalkey, Dublin.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 20/11/2015.
Signed:

John Tiernan Chairperson
For and on behalf of the Tribunal.

 

McGovern v O’Brien

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0415-001146 / Case Ref No: 0215-16667
Appellant Landlord: Thomas McGovern
Respondent Tenant: Carl O’Brien
Address of Rented Dwelling: Flat 3, 14 Saint Ignatius Avenue, Phibsboro , Dublin 7, D07E8A0
Tribunal: Mervyn Hickey (Chairperson)
Dairine Mac Fadden, Louise Moloney
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 10 July 2015 at 10:30
Attendees: Thomas McGovern, Appellant Landlord
Eileen McGovern, witness on behalf of the Appellant Landlord
Garda Kevin Bambrick, Garda Dónal O’Donohoe, Garda Robert Doorley and
Garda Peter Redmond (all of Mountjoy Garda Station, North Circular Road, Dublin 7), witnesses on behalf of the Appellant Landlord
Carl O’Brien, Respondent Tenant,
David Canning of Canning & Co. Solicitors, Respondent Tenant’s Representative.
In Attendance: Gwen Malone Stenographer
1. Background:
On 5 February 2015 the Landlord made an application to the Private Residential Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The PRTB received this application on 11 February 2015. The matter was referred to Adjudication which took place on 19 March 2015. The Adjudicator determined that:
1. The Applicant/Respondent Landlord’s application in regard to anti-social behaviour in respect of the tenancy of the dwelling at Flat 3, 14 St. Ignatius Avenue, Phibsboro, Dublin 7, is not upheld.
2. The Notice of Termination served on 18 January 2015, by the Applicant/Respondent Landlord on the Respondent/Applicant Tenant, in respect of the tenancy of the above dwelling, is invalid.
3. The Tenant shall continue to pay rent at the weekly rate of €122.00, or proportionate part thereof at the rate of €17.43 per day, unless lawfully varied, and any other charges set out in the terms of the tenancy agreement, for each week or part thereof, until such time as he vacates the above dwelling.
Subsequently, a valid appeal was received from the Landlord by the PRTB on 30 April 2015. The grounds of the Appeal were: anti-social behaviour, valid notice of termination and overholding, in respect of the tenancy of the dwelling at Flat 3, 14 St. Ignatius Avenue, Phibsboro, Dublin 7 (hereinafter “the Dwelling”).
The Board, at its meeting on 22/05/2015, approved the referral to a Tenancy Tribunal of the appeal. The PRTB constituted a Tenancy Tribunal and appointed Louise Moloney, Dairine MacFadden and Mervyn Hickey as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Mervyn Hickey to be the chairperson of the Tribunal (“the Chairperson”).
On the 22/06/2015 the Parties were notified of the constitution of the Tribunal and provided with details of the date, time and venue set for the Hearing.
On 10 July 2015 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Chairperson asked the parties present (and their representatives) 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 outlined the order in which the parties would be requested to present evidence, the order in which cross examination could take place and he also informed the parties that following this, they would be given an opportunity to make a final submission to the Tribunal. He said that members of the Tribunal might ask questions of both parties from time to time.
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 €4,000 or up to 6 months imprisonment or both. He drew the parties’ attention to Section 7 of the Tribunal Procedures.
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 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].
The Chairperson asked the Parties if they had any queries about any of the foregoing procedural matters.
There were none.
The parties giving evidence were sworn in.
5. Submissions of the Parties:
The Appellant Landlord’s Case:
Before the hearing commenced and in light of the issues arising, the Chairperson reminded all persons present of the privilege normally attaching to the investigative functions of An Garda Síochána in the detection and prosecution of crime and also to the functions of the Director of Public Prosecutions in the prosecution of crime and he urged that caution be exercised so as to ensure that these functions would not be undermined in any respect.
By way of background, the Appellant Landlord stated that he had served a Notice of Termination on the Respondent Tenant on 6 June 2012 which cited alleged anti-social behaviour on the part of the Respondent Tenant as the reason for terminating the tenancy. He said that a seven day notice period was provided for in this Notice. He said that the Notice was served as a direct consequence of the Respondent Tenant having been involved in an incident outside of the Dwelling in or around May 2012 during which he wielded an axe at certain persons and threatened them. He said that the Respondent Tenant was subsequently charged and convicted in connection with this incident. The Appellant Landlord’s evidence was that on the request of the Respondent Tenant he had initially extended the termination date from 13 June 2012 to 23 July 2012. At the Tribunal Hearing however, the Appellant Landlord confirmed that he had subsequently withdrawn this Notice on foot of assurances from the Respondent Tenant as to his future conduct and the Appellant Landlord said that he was not relying upon the June 2012 Notice of Termination in the context of his appeal.
The Appellant Landlord’s evidence was that things calmed down after this for a period. He said however, that in late 2012 he began receiving complaints from residents living in neighbouring properties to the Dwelling regarding certain activity that was said to be occurring at the Dwelling. He did not identify the complainants by name and he confirmed, on being questioned by the Tribunal, that all complaints were made to him orally. He said that the nature of the complaints was that people were being observed coming and going from the Dwelling on a very regular basis. He said that they were often on mobile phones and that they would go to a door at the Dwelling receive an item (or items) and immediately leave. The Appellant Landlord said he received “five or six” such complaints from “two or three” neighbours who lived in the vicinity of the Dwelling. It was complained to him that the transactions were suspected to be illegal in nature and the complainants wanted them stopped. He described how one such complainant had charged at him and had become aggressive, expressing concern about the presence of a Tenant of “that stature” and of the possible impact on kids in the area.
The Appellant Landlord’s evidence was that he attended at the Dwelling on a weekly basis to collect rent and 3-4 times a year for cleaning or other reasons. He said that on occasion he would have observed transactions of the type complained of occurring at the Dwelling. He said that the first time he observed and took note of a suspicious handovers at the Dwelling was 31 August 2014. He said that in late September 2014 he went to the Dwelling and observed five callers to the Dwelling in a forty minute period, four of whom collected an item / items from the Dwelling and the fifth person went into the Dwelling but did not come out while he was observing the Dwelling.
Towards the end of 2014 the Appellant Landlord became aware that the Dwelling had been searched by An Garda Síochána. He said that he obtained confirmation of this fact from An Garda Síochána and that the search had been justified. He said that he had confronted the Respondent Tenant about this but the Respondent Tenant denied that anything had been found in the Dwelling during the search. The Appellant Landlord gave evidence that the Respondent Tenant had assured him that there would be “no more” callers to the Dwelling for “messages”. He took this to be an acknowledgment that there had previously been callers to the Dwelling in this regard.
The Landlord said that there are two other flats in the same building as the Dwelling which he owns and rets. He said that one of these other two flats is adjacent to the Dwelling and that when in that flat it is possible to observe the goings on at the Dwelling. He said that in early January 2015 he was at the flat on a number of occasions as it was in between rentals. He said that from there he observed numerous transactions at the Dwelling of the type complained of. He said that it was in or around this time, taking account of what had been observed, the complaints received and also the information he had obtained from An Garda Síochána regarding the searching of the Dwelling, that he took the decision to terminate the tenancy on grounds of anti-social behaviour.
The Landlord claimed that the tenancy of the Dwelling had been validly terminated by a Notice of Termination with a date of service of 18 January 2015 (hereinafter “the Notice”). The Notice gave the Tenant 7 days’ notice to vacate the dwelling and cited alleged acts of anti-social behaviour on the part of the Tenant (specifically within the meaning of section 17(a) and / or (b) of the Act) as the basis for terminating the tenancy.
His evidence was that he had received complaints from local residents regarding the number of callers to the Dwelling collecting items. His evidence was that the persons who complained to him were not willing to give evidence to the Tribunal.
While the Appellant Landlord confirmed that at this time he was not making a case regarding the standard and maintenance of the Dwelling (as he said he had not been inside the Dwelling in recent times), he gave evidence that the front door had been damaged; a chub lock had been removed from one of the doors during the tenancy and not replaced; a Perspex roof on a storage area attached to the Dwelling had been damaged; and the front door to the utility area had also been damaged. He invited the Tribunal to make a connection between this alleged damage (which was not denied by the Respondent Tenant) and the other matters complained of by him. He thought it strange that the Respondent Tenant had not reported these issues to him when they had occurred. In respect of the damaged Perspex roof, he said that this had resulted in water ingress over a two month period.
Under cross-examination by the Respondent Tenant’s Representative the Appellant Landlord was asked why, if he had observed multiple transactions of an alleged illegal nature in a given day, he did not report this to An Garda Síochána. He replied that he had hoped it was not true and that he had sought to give the Respondent Tenant the benefit of the doubt. The involvement of An Garda Síochána had hastened the service of the Notice however, according to the Appellant Landlord.
On being asked to identify the neighbours who complained to him, the Appellant Landlord would not do so. It was put to him by the Respondent Tenant’s Representative that people calling to the Dwelling on a frequent basis was not criminal or anti-social activity in and of itself. The Appellant Landlord did not accept this proposition and said it would depend on what the people were doing. On being asked whether he had sought an explanation from the Respondent Tenant regarding the number of callers to the Dwelling the Appellant Landlord replied that he had, but that no adequate explanation had been given. He said that the Respondent Tenant had assured him that no one would collect “messages” again at the Dwelling.
The Appellant Landlord was asked by the Tribunal what had led him to serve the Notice of Termination. He said that it was a combination of complaints from neighbours, what he himself and his wife witnessed and because he had obtained verification from An Garda Síochána that the search was justified.
At the conclusion of the evidence given by Garda Redmond the Appellant Landlord said that there was no pressure put on him from An Garda Síochána, from neighbours or from people in the area to terminate the tenancy of the Respondent Tenant.
The Evidence of Eileen McGovern
The Appellant Landlord’s wife, Eileen McGovern gave evidence. She said that she had observed a steady stream of callers to the Dwelling for short periods and at various times of the day. She said that both she and the Appellant Landlord rented out a flat adjacent to the Dwelling. She said that when in that flat it was possible to observe the goings on at the Dwelling. She said that in early January 2015 she was at the flat for a period of 4-5 days at various times of the day from 9am – 10pm as the flat was in between rentals and was being cleaned. She observed numerous people calling to the Dwelling, sometimes in the order of three in a ten minute period. She described the activity at the Dwelling in early January 2015 as the last straw and said that the Notice of Termination dated 18 January 2015 had to be served.
The Evidence of Garda Dónal O’Donohoe
Garda O’Donohoe gave evidence that the Respondent Tenant came to the attention of An Garda Síochána through complaints from persons living in the locality but also from the observations of members working in the area. He himself had observed persons attending at the Dwelling and leaving very shortly thereafter.
Garda O’Donohoe gave evidence regarding the first search of the Dwelling which occurred on the night of 29 November 2013. He said that during this search a small quantity of what was suspected to be heroin was recovered from the Dwelling. He said that another item was also discovered outside of the Dwelling. He said that a file was with the Director of Public Prosecutions regarding this search.
Garda O’Donohoe said he was also involved in a second search of the Dwelling which occurred in late December 2013. He said that certain paraphernalia commonly associated with the consumption of illegal substances was recovered during the second search however no prosecution was being considered in respect of this recovery and he confirmed that no illegal substances were found during this second search. In response to a question from the Tribunal as to how the Respondent Tenant had come to the attention of An Garda Síochána Garda O’Donohoe stated that before a search warrant could be obtained there had to be reasonable grounds for same and this involved making enquiries and monitoring the Dwelling.
Under cross-examination by the Respondent Tenant’s Representative, it was put to Garda O’Donohoe that the relatively small amount of the illegal substance found rendered it unlikely that charges would be brought against the Respondent Tenant. This was not accepted by Garda O’Donohoe whose evidence was that charges could still be brought. It was suggested that due to the layout of location of the Dwelling he could not have observed what he claimed to have observed however this was also disputed by Garda O’Donohoe. On being questioned, Garda O’Donohoe accepted that he had not been telephoned by any neighbours of the Respondent Tenant however he stated that the Respondent Tenant had been brought to the attention of An Garda Síochána following complaints received albeit that he was not identified by name to them. Garda O’Donohoe accepted that no charges had yet been brought in connection with the first search and also that the Respondent Tenant had no convictions in approximately three years. He also accepted that no admissions had been made by the Respondent Tenant in connection with the first or second searches.
The Evidence of Garda Robert Doorley
Garda Doorley said that on 13 November 2014 he had forcibly entered the Dwelling as part of a search of the Dwelling. He said that the Respondent Tenant was present in the Dwelling at the time and that no illegal substances were recovered. Garda Doorley stated his belief that there were “signs” of drug use and he stated that certain paraphernalia commonly associated with the use of heroin was present in the Dwelling. He stated his suspicion that illegal substances may have been recently disposed of prior to the members gaining entry to the Dwelling. He confirmed that no criminal prosecution had been brought arising from this search. Garda Doorley stated that he was also involved in a fourth search of the Dwelling which took place on 7 January 2015 which search was the subject of a current criminal prosecution.
Under cross-examination by the Respondent Tenant’s Representative it was put to Garda Doorley that the presence of the items upon which he based his view that heroin may have been consumed at the Dwelling could have been explained on the basis that the items were being used for the consumption of cannabis. Garda Doorley stated that in his experience, the items in question were only used for the consumption of heroin. On being questioned regarding his suspicion that items may have been disposed of by the Tenant prior to the search in the drainage system Garda Doorley accepted that having searched the system no illegal substances had been recovered.
The Evidence of Garda Peter Redmond
Garda Redmond said he was a community police Garda and drugs liaison officer with expertise in the analysis of controlled substances. He gave evidence of having received a complaint from a business owner in Drumcondra regarding the Respondent Tenant selling illegal substances outside of the person’s place of business. Garda Redmond stated that members had called to nearly all of the houses in the vicinity of the Dwelling as part of their investigations and had received complaints from neighbours who identified a “constant presence” of people calling at the Dwelling who were suspected of engaging in the dealing of illegal substances.
Garda Redmond confirmed that Garda surveillance of the Dwelling had resulted in large numbers of people being observed calling at the dwelling, engaging in a form of brief transaction and then leaving. He said the transactions were by hand with small objects being handed over and cash given in return. He said that one person suspected of transacting in this manner had been approached by Garda Redmond whereupon he was said to have swallowed what was believed by Garda Redmond to be a “deal” of heroin.
He said that a search warrant was obtained and the Dwelling was searched for a fourth time on 7 January 2015. Two different suspected controlled substances were said to have been found during this search along with a sum of €2,000 in cash. He said that certificates of analysis had been obtained in respect of the substances found and a summons was said to have issued in respect of a criminal prosecution but had not yet been served on the Respondent Tenant.
Under cross-examination by the Respondent Tenant’s Representative Garda Redmond confirmed that the business owner had given him the Respondent Tenant’s name and address. Garda Redmond was challenged regarding his assessment that the individual stopped by him had swallowed a deal of heroin. Garda Redmond referred to his expertise in the area and reiterated his belief that a deal of heroin had been swallowed by this person as he had seen it. He made a connection between this incident and the transactions at the Dwelling. Garda Redmond confirmed that no charges had been brought against this individual or indeed the Respondent Tenant arising from this particular incident.
Questioned as to why Garda surveillance had not led to the arrest of any of the persons from among the very many alleged to have been calling at the Dwelling, Garda Redmond replied that the members were “going for the bigger prize”. He confirmed the Respondent Tenant had brought an application to recover the €2,000 seized on 7 January 2015. It was put to Garda Redmond that he had personally pressurised the Respondent Tenant to inform on others to An Garda Síochána. Garda Redmond denied that he had done so. It was also put to him that he had pressurised the Appellant Landlord to terminate the tenancy. Garda Redmond denied this also.
The Respondent Tenant’s Case:
The Respondent Tenant claimed that the Notice of Termination with a date of service of 18 January 2015 was invalid. The invalidity pertained to the alleged anti-social behaviour on his part which he denied. The Respondent Tenant stated that he was served with the Notice personally, approximately one week after the search on 7 January 2015.
The Respondent Tenant stated that he had no issue with his neighbours and had a good relationship with them. He stated that at least four neighbours were not on speaking terms with the Appellant Landlord. He denied engaging in any activity coming within the definition of anti-social behaviour in the Act (which definition was put to him in full by his Representative).
He stated that he had previously had a heroin problem spanning “a couple of years” but that he had given up heroin since late 2014. He stated that he was not aware of any charges having been brought against him in relation to any matter since. He stated that he was in the process a trying to recover the cash which had been seized from the Dwelling in January 2015.
Regarding the incident in May 2012, the Respondent Tenant accepted that he had threatened persons with an axe outside of the Dwelling and that he had been charged and convicted in respect of this incident. In the lead up to it however, the Respondent Tenant stated that there had been a number of break-ins, attempted break-ins and other incidents at the Dwelling and at neighbouring properties in the area. He said that his bicycle and some tools had been stolen and that attempts were made to steal his motor cycle. He said that a car was also burned out near the Dwelling. The Respondent Tenant stated that none of these issues related directly to any wrongful activity on his part. He said that on the night in question in 2012, a number of persons were outside of the Dwelling playing loud music. He said that he approached them and was met with abuse whereupon he lost his temper and threatened them with an axe. He stated that his actions were borne of frustration.

He admitted that people may have called to the Dwelling regularly but stated that these were either social calls or else persons inquiring as to how to gain access to a nearby gated property. He denied ever having handed items over to persons at the Dwelling in the manner alleged. He accepted that he had, on being confronted by the Appellant Landlord, undertaken to stop persons calling for what he had described as “messages”. He explained that this was a broad term to describe many things but that it was not a reference to illegal items.
The Respondent Tenant accepted the Dwelling had been searched by members of An Garda Síochána on four separate occasions. He explained the presence of the €2000 in cash in the Dwelling on the basis that it had been loaned to him by a business partner for a prospective business and in order to purchase a car.
The Respondent Tenant alleged that Garda Redmond pressurised him to provide An Garda Síochána with information relating to criminal activity. He alleged that Garda Redmond offered to personally return the cash sum seized from the Dwelling if he provided such information. He alleged that Garda Redmond threatened to have the Appellant Landlord terminate the tenancy if he did not provide such information and that Garda Redmond ultimately arranged the service of the Notice by the Appellant Landlord when he did not do so.
Regarding the damage to the Dwelling, the Respondent Tenant stated that the back door been forced causing damage to it; the front door had been forced by An Garda Síochána as part of a search. He said that the Perspex roof had become brittle and hard over time and had been broken by a football kicked by children living nearby. He had attempted to fix the hole in the roof with wood but accepted that water had come in through the hole.
The Respondent Tenant said that his nine year old son stays with him at the Dwelling at the weekend. He re-emphasised that he has a good relationship with his neighbours. He stated his belief that he will end up homeless if forced to vacate the Dwelling.
Under cross-examination by the Appellant Landlord he was asked why he had taken so long to report the damage caused to the Dwelling. The Respondent Tenant replied that the Appellant Landlord could sometimes be confrontational towards him and that he found him hard to deal with. On being questioned about the many callers to the Dwelling, the Respondent Tenant reiterated that the calls were social in nature or related to access to the nearby gated property.
In his final submission the Appellant Landlord submitted that based on all of the evidence given regarding the complaints received, the observations of the various witnesses, the successful searches of the Dwelling by An Garda Síochána, the condition of the Dwelling and the charges pending, he had been entitled to terminate the tenancy on grounds of anti-social behaviour and on seven days’ notice.
The Respondent Tenant’s Representative gave a closing submission on his behalf. He said that while the Dwelling had been searched on four occasions by An Garda Síochána, the Respondent Tenant had not been convicted of any offence since 2012. He said that the Respondent Tenant was also not aware of any pending charges against him and it was submitted that nothing “of substance” had been found on any of these searches. On being questioned by the Tribunal as to whether the Respondent Tenant was making the case that the Tribunal could not make a finding of anti-social behaviour in the absence of a criminal conviction, the Respondent Tenant’s Representative did not say that that was so, but stated that a high standard of proof was required.
6. Matters Agreed Between the Parties
(a) The Tenancy commenced on 14 November 2011.
(b) At the date of hearing, the Respondent Tenant remained in occupation of the Dwelling.
(c) The weekly rent was €122.
(d) A security deposit of €600 was paid by the Respondent Tenant and retained in full by the Appellant Landlord.
(e) At the date of hearing the Respondent Tenant was up to date with rent payments.
(f) In May 2012 the Respondent Tenant was involved in an incident in which he wielded an axe at persons in the vicinity of the Dwelling. He was subsequently charged and convicted in respect of this incident.
(g) A Notice of Termination was served on the Respondent Tenant by the Appellant Landlord in June 2012 arising from this incident but it was subsequently withdrawn by the Appellant Landlord.
(h) The Dwelling had been searched on four separate occasions by members of An Garda Síochána.
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 Respondent Tenant is in breach of his obligations arising under section 16(h) of the Act, not to behave within the Dwelling, or in the vicinity of it, in a way that is anti-social or allow other occupiers of, or visitors to, the dwelling to behave within it, or in the vicinity of it, in such a way.
Reasons:
The Tribunal notes the evidence of the Appellant Landlord, his wife and also the evidence from the members of An Garda Síochána that a steady stream of persons were regularly attending at the Dwelling in suspicious circumstances. The Tribunal notes the evidence given by the Appellant Landlord that he had received complaints from residents in neighbouring properties regarding a steady stream of people attending at the Dwelling for purposes which the complainants believed to be illegal and the concern expressed for children in the area in the context of one such complaint. The Tribunal notes the evidence of Garda Redmond that members of An Garda Síochána had called to nearly all of the houses in the vicinity of the Dwelling as part of their investigations and had received complaints from neighbours who identified a “constant presence” of people calling at the Dwelling who were suspected of engaging in the dealing of illegal substances. The Tribunal notes that having been confronted by the Appellant Landlord about the frequency of callers to the Dwelling the Respondent Tenant undertook to stop it but that this did not occur.
While the Appellant Landlord refused to identify the complainants by name, the Tribunal notes that in his grounds of appeal the Appellant Landlord stated residents were not prepared to attend the Tribunal due to the nature of their complaints and due to fear of intimidation because of the Respondent Tenant’s previous behaviour in the vicinity of the Dwelling and his conviction arising therefrom. It is noted also that in his grounds of appeal the Appellant Landlord stated he had been accused of condoning drug dealing.
The Tribunal notes that the Respondent Tenant accepted that the Dwelling had been searched on four separate occasions by members of An Garda Síochána. The evidence of Garda O’Donohoe was that such searches were carried out only after enquiries would have been made of persons in the vicinity of the Dwelling and the Dwelling monitored.
The Tribunal notes that in respect of the outcome of one of the searches the evidence from the members of An Garda Síochána was that a file had been sent to the DPP and in respect of another search a summons had issued. The Tribunal notes the Respondent Tenant’s denial that he was involved in any drug dealing or anti-social behaviour within the meaning of the Act however it is also noted that he did not deny that items commonly associated with the consumption of illegal substances were found in the Dwelling by members of An Garda Síochána and also that he admitted to having a heroin problem over a number of years prior to late 2014. It is further noted that the Respondent Tenant accepted that he was involved in an incident outside of the Dwelling in or around May 2012 during which he wielded an axe at certain persons and threatened them for which he was subsequently convicted. While the Appellant Landlord did not seek to rely on this incident in 2012, the Tribunal takes the view that this was a very serious incident and one to which it may have regard in making its decision.
Based upon the evidence as submitted in both written and oral forms and as adduced in course of the Tribunal Hearing the Tribunal considers that on the balance of probabilities that the Respondent Tenant has engaged in behaviour that could cause fear, danger, injury, damage and loss to persons living in the vicinity of the Dwelling within the meaning of section 17 (1) (b) of the Act and is therefore in breach of his obligations arising under section 16(h) of the Act.
Finding No.2
The 7 day Notice of Termination served by the Appellant Landlord upon the Respondent Tenant with a date of service of 18 January 2015 in respect of the Tenancy of the Dwelling at Flat 3, 14 St. Ignatius Avenue, Phibsboro, Dublin 7, is valid.
Reasons:
As the Respondent Tenant had engaged in serious anti-social behaviour within the meaning of section 17(1)(b) of the Act, the Appellant Landlord was entitled to terminate the tenancy on seven days’ notice as provided for in section 67(2)(a)(i) of the Act. The Notice of Termination with a date of service of 18 January 2015 complied with the requirements of section 62 of the Act and is therefore valid. The Respondent Tenant acknowledged that he had been personally served with the Notice of Termination and the Tribunal accepts the evidence of the Appellant Landlord that the Notice of Termination was served on 18 January 2015.
Finding No.3
The Appellant Landlord is entitled to damages by reason of the Respondent Tenant’s breach of his obligations arising under section 16(h) of the Act in the sum of €1,500.00.
Reasons:
While the anti-social behaviour complained of was of a serious nature and persisted over a very significant period, the Tribunal notes the evidence given by the Appellant Landlord to the effect that he did not act upon the complaints received by him for a long time on the basis that he gave the benefit of the doubt to the Respondent Tenant and hoped that the complaints he received were incorrect. His evidence was that only when he became aware of the involvement of An Garda Síochána did he seek to act upon the complaints. In all of the circumstances, the Tribunal finds the sum of €1,500.00 to be an appropriate level of damages for the Respondent Tenant’s breach of obligation.
8. Determination:
Tribunal Reference TR0415-001146
In the matter of Thomas McGovern (Landlord) and Carl O’Brien (Tenant) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
(a) The Notice of Termination served on 18 January 2015 by the Appellant Landlord on the Respondent Tenant in respect of the Tenancy of the Dwelling at Flat 3, 14 St. Ignatius Avenue, Phibsboro, Dublin 7, is valid.
(b) The Respondent 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 the Order by the Board.
(c) The Respondent Tenant shall pay the total sum of €1,500.00 to the Appellant Landlord, in consecutive monthly payments of €300 on the 28th day of each month immediately following the date of issue of the Order by the Board being damages for breach of obligation on the part of the Respondent Tenant in respect of the Tenancy of the Dwelling as aforesaid.
(d) The enforcement of the Order by the Board for such payment of €1,500.00 will be deferred and the total sum owing reduced by the cumulative sum paid in the monthly instalments made by the Respondent Tenant to the Appellant Landlord on each due date until such time as the total sum of €1,500.00 has been paid in full.
(e) 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 of any such monthly payment shall immediately become due and owing to the Appellant Landlord.
(f) The Respondent Tenant shall also pay any further rent outstanding from 10 July 2015 to the Appellant Landlord at the rate of €122 per week or proportionate part thereof at the rate of €17.38 per day, 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 he vacates the above Dwelling.
(g) The Appellant Landlord shall refund the entire security deposit of €600.00 to the Respondent Tenant upon the Respondent Tenant vacating and giving up 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 18/08/2015.
Signed:

Mervyn Hickey Chairperson
For and on behalf of the Tribunal.

 

Medioros v ineen

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001583 / Case Ref No: 1215-23037
Appellant Tenant: Susi Medeiros
Respondent Landlord: Sile Dineen
Address of Rented Dwelling: 382 Carnlough Road, Cabra , Dublin 7,
Tribunal: Roderick Maguire (Chairperson)
John Tiernan, Rosemary Healy Rae
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 04 April 2016 at 2:30
Attendees: TJ OSullivan (Respodent Landlords Representative)
Susi Medeiros (Appellant Tenant)
In Attendance: Wordwave stenographers
1. Background:
On 15 December 2015 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 25 January 2016. The Adjudicator determined that:
The Notice of Termination served on 02 November 2015 by the Applicant Landlord’s
Agent on the Respondent Tenant in respect of the tenancy of the Dwelling at 382
Carnlough Road, Cabra, Dublin 7 is valid.
The Respondent 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
this Order.
The Respondent Tenant shall pay the total sum of EUR1,350 to the Applicant
Landlord within 7 days of the date of issue of this Order, being rent arrears in respect
of the tenancy of the above dwelling.
The Respondent Tenant shall also pay any further rent outstanding from 25 January
2015 [the date of the hearing] to the Applicant at the rate of EUR1,350 per month or
proportionate part thereof at the rate of EUR44.38 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 she vacates the above dwelling.
The Landlord shall refund the entire of the security deposit of EUR1,350 to the
Respondent Tenant upon the Respondent Tenant 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 02 February 2016.
The grounds of the appeal are Breach of landlord obligations and Invalid Notice of
termination. The appeal was approved by the Board on 09 February 2016
The RTB constituted a Tenancy Tribunal and appointed John Tiernan, Rosemary Healy
Rae, and Roderick Maguire 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”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 04 April 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:
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 25 January 2016 in the case of a dispute between the Appellant Tenant and the
Respondent Landlord in respect of a tenancy at 382 Carnlough Road, Cabra, 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 RTB in relation to the case and that
they had received and understood the RTB 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 said that the Appellant Tenant would be invited to present her case and
then the Respondent Landlord’s case would be presented by the agent for the Landlord
and that each party could be cross-examined or the parties may simply wish to respond
to what was said by presenting their own case or response to the Tribunal. He said that
members of the Tribunal would ask questions from time to time. He also said that at the
end of the hearing, the Appellant Tenant and the Respondent Landlord’s agent would be
given the opportunity make a final submission should they so wish.
The Chairperson reminded the parties that any Determination Order of the RTB, 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:
Appellant Tenant’s Case:
The Appellant Tenant said that she is disputing the validity of the Notice of Termination of
2nd November 2015 and also that the Respondent Landlord is in breach of her
obligations. She said that it is her position that the Landlord cannot terminate the fixed
term agreement unless she herself has breached her Tenant’s obligations. Furthermore
she said that there was a mediation that had failed and that immediately afterwards she
got the Notice of Termination in the post, dated 2 November 0215, telling her to move.
She said that the original Notice of Termination was given on 17 September and did not
have a signature.
The Tenant said that she had gone to see the house and had submitted documentation at
the same time, including her driving licence and passport. She had needed some time to
get ready, and that time was asked for in an email that had been submitted. She
submitted that it was clear that the tenancy did not begin until 20 September. She stated
that she had agreed the tenancy on 4 September 2015, but that it was also agreed at that
stage that she would not pay rent until 20 September after the snag list of items that she
wanted attended to was taken care of.
There was no signed copy of the lease on the Tribunal File. The Appellant Tenant
submitted that the correct version of the lease was the version submitted to the Tribunal
by herself, rather than the one submitted by the Landlord. She said that the lease
included the following term: (a) The premises are let to the person(s) named as Tenant(s)
only and no changes or substitutions or additions are to be made without obtaining the
prior written consent of the landlord. The only people approved for tenancy are Susi
Medeiros and any person she deems suitable to reside on the premises with her. She
contended in evidence that that this allowed her to recruit tenants without reference to the
Landlord or her agent.
She said that when she went into the house it was very dirty, though this could not be
seen in the videos that she submitted. The red carpet in certain rooms was very dirty and
nobody could walk barefoot on it. She submitted a video recording that had been made
by a friend on the day that she was shown around the house by the agent of the Landlord
which recorded them going through the provisions of the lease. She said that she had no
electricity and no gas and she was without cooking facilities for a period as she had not
understood how the meters in the house worked, despite the fact that on the video the
agent showed her how they operated. She agreed that the agent refunded €50 of the
deposit paid on 4 September 2015 to her to go towards the amount of €39 that was
outstanding on one of the meters, but said that she was effectively without gas and
electricity until 15th October, and that there had been €47 outstanding on the other
meter. She gave evidence that she undertook to send a snag list of items to be attended
within 4 or 5 days and she said that the agent undertook that he would attend to these
and that she understood that the lease would only run from the time that such matters
were attended to.
She also submitted that the cooker was never fixed, despite the agent saying that he
would arrange this. She said that the house was in a bad condition and the painting
outside was never completed, though it was agreed that the house was totally repainted
inside. The Appellant Tenant submitted that the dishonest intentions of the Landlord were
exemplified by the failure to finish painting the outside of the house, as on 4 September it
had looked as if the whole outside of the house was going to be repainted too.
She said that a handyman named Lucas came to fix the window, and to fix the boiler, but
he took a long time and said that he needed a part and left and did not return to complete
the job. She gave evidence that Lucas attended on another occasion but said that he
needed to be paid and would not do the work that was asked of him. In addition the
extractor fan in the kitchen was never fixed and grease flowed from it.
She said that it was very difficult at this time to get a housemate or housemates, as there
was already a notice to vacate the dwelling. She gave evidence that on 12th October
2015, the Landlord and the agent arrived at the dwelling and told her that she had to
move out by that Saturday. They were horrible to her, were shouting and didn’t let her
close the door. Eventually they all went outside and the Landlord said that she didn’t need
a reason to ask for the return of the dwelling. She said that the agent stated that he had
been trying to knock on the door for a long time, but she contended that the bell doesn’t
work and the other residents ring by phone if they need to gain access. This she said is
because she does translation work at home and cannot have background noise. She told
the Tribunal that the occupancy of the dwelling comprised 6 persons and herself.
After this visit from the Landlord and the agent, she said that everybody was very scared
and 5 or 6 of those who lived in the house went to the Gardai, and she organised for them
to see a solicitor. She said that they were advised not to let the Landlord and or her agent
into the house and to record everything that had happened.
On 19 October, Fabio, (one of the tenants featured in the videos submitted), had moved
out of the house, but he was visiting. The Gardaí had said that they would come by. The
tenant was told that there was to be an inspection. The Gardaí came and forced their way
into the property and questioned people there. Neither the agent nor the Landlord were
there. She said that she believed that this visit by the Gardaí arose through the request of
the Landlord and/or her agent.
The Appellant Tenant said that on two occasions in February 2016 she had refused the
agent access to let an inspection take place. She referred to a number of health issues
she has and a car crash in which she was involved and that she was very stressed at the
time. She gave evidence that she had inserted a key in the internal side of the door-lock
which would prevent it opening from the outside. She said that she had placed a simple
chain on the front door as she had decided that she should be careful in relation to the
security of the dwelling. She said that the agent did not enter the dwelling and that the
requested inspections had not taken place.
The Appellant Tenant stated that she paid her rent, was not in arrears and had borrowed
money on 15 December 2015 to pay the rent despite being ill and in hospital.
She said that contrary to what was said by the Landlord, while the house was painted
fully, the wallpaper was off the wall in one bedroom. The Appellant gave evidence that
she was told at the outset of the tenancy that the windows were going to be changed but
they were not. She said that she had made no written complaints in relation to the
windows. She said she told the Landlord of ingress of water at the windows repeatedly
over the phone, but never in any other manner, though she was in email contact with the
agent for many things.
She gave evidence that when the Gardaí came to the dwelling on the 19 October she had
the police on the phone and hung up thinking that they were attending as she had just
called them. She gave evidence that she would not allow the Landlord’s agent to inspect
the dwelling, as if she was not moving out, there was no reason for him to do the
inspection.
The Tenant submitted that the Landlord was not allowed to terminate the tenancy as had
been done. In addition, she submitted that the way that she had been treated and the
state of the dwelling amounted to a breach of Landlord obligations.
Respondent Landlord’s case
The agent of the Landlord stated that he issued the Notice of Termination dated 2
November 2015 on that date by ordinary pre-paid post and that he had personally put it
into the post-box. He submitted that, although the Landlord had given as a reason for the
termination that she was going to live in the house herself, as this was within the first 6
months of the tenancy, the said Notice would have been valid even in the absence of
such reason being given. He also referred to the lease agreement between the parties
which provided at paragraph (u) of the Special Conditions that the Landlord had the right
to terminate the lease at any stage within the period of 12 months once the minimum
notice provided for under the Residential Tenancies Act 2004 was provided. It was
submitted that the rent was constantly paid late.
It was submitted by the Landlord’s agent that the tenancy and payment of rent started on
4 September 2015 and that the tenant had already been given leeway up to that date,
and it was never agreed that the lease would start later. This he said was reflected in the
version of the lease submitted by the tenant. The property was in good condition when
the tenant moved in. He said that the interior of the dwelling was painted but that there
was never a commitment to paint the exterior of the dwelling. The agent stated that when
matters relating to the gas cooker were raised, he arranged for a Registered Gas
Installer to look at the heating and the cooker. As far as the agent was aware, that
resolved those matters, and he never heard any complaints about those again. If he had
heard about any continuing difficulties, he would have arranged for repair or replacement
of the relevant heating or cooking apparatus. The agent confirmed that he had told the
tenant to make a list of the issues that were outstanding and she did so and he believed
that he had attended to all of them.
The agent of the Landlord recounted that within a week of 4 September, he was
contacted by a previous letting agent and told that the tenant was problematic. He was
also contacted by the Gardai who stated that she was under surveillance in relation to an
ongoing alleged theft and fraud case. Two issues caused concern to the agent of the
landlord: there was an arrest at the house in the middle of October 2015 and there were
squad cars calling to the house at the end of October or the beginning of November 2015.
The agent said that he was told that the Gardai had called to the house as the tenant had
locked out two others who were living there and had refused to refund the deposit that
they had paid to her. It was stated that there was a fire and safety hazard as the door was
chained from the inside, and that he had been advised that there were up to 10 people
living in the house.
The agent of the Landlord said that the Notice of Termination that was originally served
was to expire on or around 12 October. There had been a mediation in relation to this
original Notice of Termination. There had been no further contact between the parties
after that mediation, apart from the service of the Notice of Termination on 2 November.
The Landlord had not been concerned about the sub-letting but had not understood that
there was going to be so many people in the house. In response to the Tenant’s
allegations regarding the appearance of moisture at the windows he said that this was
caused by the number of people residing in the dwelling. He said that the dwelling is a
three bedroomed house comprising five bed spaces as reflected in the PRTB tenancy
Registration. The agent for the Landlord agreed that the version of the lease submitted by
the tenant may well have been the final version agreed.
In advance of the Notice of Termination expiring on 12 October, the Landlord and her
agent decided to visit the dwelling on 9 October 2015. The agent did not believe that
there was advance notice given to the tenant. It was decided that they would “drop
around and chat about events” with the Appellant Tenant. The agent stated that the
Landlord had approached the meeting in a professional manner, that the conversation
was calm and collected and that there had been no shouting and despite what had been
said by the Appellant Tenant, He said that any visits by the Gardaí to the dwelling had
nothing to do with him or the Landlord.
The Landlord’s agent submitted that the Notice of Termination is valid and that the
Landlord has had a tough time and significant difficulty with the tenancy and now wishes
to move on.
The Chair thanked those in attendance 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 RTB of that Determination.
6. Matters Agreed Between the Parties
The monthly rent is €1,350 and a deposit of €1,350 was paid at commencement of the
tenancy. The Appellant Tenant is still in occupation of the dwelling and no rent is currently
owed.
7. Findings and Reasons:
Having considered the documentation before it and having considered the evidence
presented to it, the Tribunal’s findings and reasons therefor are set out hereunder.
Finding 1: The tenancy between the parties of the dwelling at 382 Carnlough Road,
Cabra, Dublin 7 began on 4 September 2015.
Reasons: The Appellant Tenant did not submit sufficient evidence to substantiate her
case that the commencement of the tenancy was agreed to be deferred to a date later
than the 4th September 2015. The Tribunal accepts the evidence of the agent for the
Landlord, supported by the emails and the video submitted by the tenant. There had been
an accommodation by the Landlord in delaying the commencement of the tenancy up to 4
September 2015, but it was not extended beyond this date. Both versions of the lease
submitted indicated that the tenancy commenced on 4 September 2015, and the tenant
had paid her deposit and first month’s rent at that time. In addition, the emails between
the agent and the tenant before 4 September support the position that the tenancy had
been delayed so as to start on 4 September.
Finding 2: The Notice of Termination served by the Landlord’s agent on 2 November
2015 is valid and the tenant is overholding.
Reasons: The Notice complies with all the elements required under the 2004 Act. In
addition, although the tenancy between the parties was for a period of 12 months, it
provided at Special Condition (u) that it could be terminated by the Landlord in the
following terms: “The landlord has the right to terminate the lease at any stage during the
term once the minimum notice as required under the Residential Tenancies Act 2004 is
furnished.” Section 58 of the 2004 Act provides as follows:
“58.—(1) From the relevant date, a tenancy of a dwelling may not be terminated by the
landlord or the tenant by means of a notice of forfeiture, a re-entry or any other process or
procedure not provided by this Part.
(2) Accordingly, the termination by the landlord or the tenant of—
(a) more beneficial rights referred to in section 26 that the tenant enjoys under a tenancy
than those created by Part 4, or
(b) a tenancy to which section 25 applies,
must be effected by means of a notice of termination that complies with this Part.
(3) Each of the following—
(a) a tenancy referred to in subsection (2)(a) (unless it expressly excludes this means of
termination),
(b) a tenancy referred to in subsection (2)(b), and
(c) a tenancy of a dwelling created before or after the relevant date in so far as its
operation is not affected by Part 4,
shall be construed as including a term enabling its termination by means of a notice of
termination that complies with this Part (but, in the case of a tenancy that is for a fixed
period, unless it provides otherwise, only where there has been a failure by the party in
relation to whom the notice is served to comply with any obligations of the
tenancy).”(emphasis added).
It is clear from this provision that the parties to a lease can provide for a means of
termination of a fixed-term lease. That is what was done in this case and as at the time of
service of the Notice of Termination the tenancy was in existence for a period not longer
than 6 months, there were no additional requirements for the Notice of Termination to be
effective. The Notice of Termination did not require the inclusion of a reason as provided
for under the provisions of s.34 of the Act. The Tribunal determines that damages of in
the sum of €500 shall be awarded to the Landlord to be paid by the Appellant Tenant for
the consequences of the Appellant Tenant’s failure to vacate the premises and
overholding.
Finding 3: The Tribunal finds that the Respondent Landlord was in breach of her
obligation under the provisions of s. 12(1)(a) of the Act of 2004 by failing to allow the
tenant of the dwelling peaceful enjoyment and exclusive occupation of the dwelling.
Reasons: The unscheduled arrival by the Landlord and her agent at the dwelling and the
fact that they let themselves into the dwelling without permission on 12 October 2015
amounted to a breach of Landlord obligations, but no other breach of obligations is found
against the Landlord. In his own evidence the agent of the Respondent Landlord said that
both he and the landlord entered the dwelling without prior arrangement on at least one
occasion. He said that he stood inside the doorway but did not enter any of the rooms. He
gave evidence that the landlord and agent let themselves into the property. This is in
breach of the obligation to provide peaceful and exclusive occupation to the tenant under
Section 12(1)(a) of the Residential Tenancies Act 2004. The Tribunal determines that
damages in the sum of €200 should be paid by the Landlord to the Appellant Tenant in
respect of the consequences of this breach of obligation by the Landlord.
8. Determination:
Tribunal Reference TR0216-001583
In the matter of Susi Medeiros (Tenant) and Sile Dineen (Landlord) the Tribunal in
accordance with section 108(1) of the Residential Tenancies Act 2004, determines
that:
(1) The Notice of Termination served on 2 November 2015 by the Respondent
Landlord on the Appellant Tenant in respect of the tenancy of the dwelling at 382
Carnlough Road, Cabra, Dublin 7 is valid.
(2) The Appellant Tenant and all other 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 Appellant Tenant shall continue to pay rent at the monthly rate of €1,350, or at
the rate of €44.38 per day where a whole month does not apply, 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 €1,350
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.
(5) The Appellant Tenant shall pay the sum of €300 to the Respondent Landlord within
28 days of the date of this Order, being comprised of damages in the sum of €500
arising as a consequence of her failure to vacate the dwelling and overholding at the
dwelling having deducted the sum of €200 in respect of the consequences of the
Respondent Landlord’s failure in her obligation to allow peaceful and exclusive
occupation of the above dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
12 May 2016.
Signed:
Roderick Maguire Chairperson
For and on behalf of the Tribunal.

 

Cranston v Daly

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001742 / Case Ref No: 0216-24073
Appellant Landlord: Lorraine Cranston, David Cranston
Respondent Tenant: Conor Daly
Address of Rented Dwelling: 103a Malahide Road, Donnycarney , Dublin 3,
Tribunal: Louise Moloney (Chairperson)
Vincent P. Martin, Gene Feighery
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 22 June 2016 at 10:30
Attendees: Lorraine Cranston (Appellant Landlord)
David Cranston (Appellant Landlord)
Thomas Daly (Respondent Tenant`s
Representative)
In Attendance: Stenograqpher
1. Background:
On 08 February 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 an Adjudication
which took place on 07 April 2016. The Adjudicator determined that:
1. The Respondent Landlord shall pay the total sum of €658 to the Applicant Tenant,
within 14 days of the date of issue of this Order, being the portion of the unjustifiably
retained security deposit in respect of the tenancy of the dwelling at 103a Malahide
Road, Donnycarney, Dublin 3.
Subsequently the following appeal was received from the Landlord on 27 April 2016. The
grounds of the appeal are Deposit retention and Damage in excess of normal wear and
tear. The appeal was approved by the Board on 28 April 2016
The RTB constituted a Tenancy Tribunal and appointed Louise Moloney, Vincent P.
Martin, Gene Feighery 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 22 June 2016 the Tribunal convened a hearing at Tribunal Room, RTB, Floor 2,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
– Copy fee note for €350 from James M Briscoe Architect was furnished by the
Respondent Tenant`s Representative to support the Respondent Tenant`s application for
costs/expenses of the Hearing.
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 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 Landlords) 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 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 Landlords.
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 Landlords 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 were then sworn in.
5. Submissions of the Parties:
APPELLANT LANDLORDS CASE:
The first named Appellant Landlord said that the Appellant Landlords have been in the
plumbing and heating business for 30 years. She said that her husband, the second
named Appellant Landlord, is a qualified plumber with 45 years of experience.
She explained that the dwelling is contained within a building that the Appellant Landlords
purchased in or about 1994. She said that this building is a two story building with two
commercial units on the ground floor and the dwelling, which is a two bed-roomed
apartment, on the second floor. She said that approximately three years after the
Appellant Landlords purchased the building they moved into the building and ran their
business from the building using the dwelling upstairs as their office. She said the
Appellant Landlords never had a problem with the plumbing in the dwelling
notwithstanding that numerous people were coming and going from the dwelling every
day in the course of their business. She emphasised that the toilet and kitchen areas in
the dwelling were in regular use during this time, that the plumbing is the same then as it
was during the tenancy and that there was no problem with the drainage.
The first named Appellant Landlord said that in 2011 the Appellant Landlords ceased
business and vacated the dwelling. She said that there were two tenancies in the dwelling
prior to the tenancy the subject of the Hearing, that one was a one year tenancy and the
other was a tenancy for two years. She said that the ground floor units underneath the
dwelling were vacant for 2/3 years before the Respondent Tenant`s tenancy in the
dwelling commenced, that the Appellant Landlords did regular inspections of these units
as they were required to do for insurance purposes and that no problems presented with
regard to the plumbing or drainage.
She said that the tenancy was to commence on the 1 January 2015 but that she gave the
keys to the Respondent Tenant on the 19 December 2014 when he signed the lease so
that he and his girl-friend could move in early. She said that there was a good relationship
between the Appellant Landlords and the Respondent Tenant during the tenancy. She
said that she got a phone call from the Respondent Tenant on the 24 November 2015 to
say that he was not renewing the lease and asking if he could use the deposit as the last
month`s rent, that she said no to this proposal but said he could end the Lease early if he
wanted. She said that they agreed to end the tenancy on the 21 December 2015 and it
was agreed that they would meet on the 21 December 2015 at the dwelling to return the
deposit.
The first named Appellant Landlord said that on the 9 December 2015 during a routine
inspection of the ground floor units under the dwelling the second named Appellant
Landlord found sewerage which had come from a toilet in one of the downstairs units.
She said that the Appellant Landlords called Dyno Rod who came on the 9 December
2015 and they cleared the drains. She said that Dyno Rod found that the drain was
blocked with baby wipes. She said that the building within which the dwelling is situate is
at the end of a terrace, that there is a laneway along the end of the building and that the
waste from the dwelling goes into the drain in the laneway which is a private drain
belonging to the building. She said that there are 3 toilets in the building, one upstairs in
the dwelling and the other two are downstairs. She said that the downstairs toilets were
not in use for the period the units were vacant which vacancy period commenced 2 or 3
years prior to the tenancy in the dwelling. She said that every two months or so when the
Appellant Landlords inspected the ground floor units they flushed the toilets in the ground
floor units.
The second named Appellant Landlord explained that the down pipe from the dwelling
goes into a T pipe and the other arm of the T goes into the back office on the ground
floor. He said that when the waste came from the dwelling it backed up and went to the
lowest point which essentially was the toilet in the vacant unit which toilet then
overflowed. He said if there was no blockage the waste from the dwelling would have
flowed down from the dwelling through the pipes to the outer drains on the street.
The first named Appellant Landlord said that she rang the Respondent Tenant and told
him of the problem and that he said it was nothing to do with him. She said that the
Respondent Tenant told her that his toilet was flushing fine.
The first named Appellant Landlord said that between the 9 December 2015 and the 28
December 2015 the Appellant Landlords did all they could to save the carpets in the
ground floor unit as to replace the carpets would have cost thousands of euros. She said
that the Appellant Landlords had to go to and from the ground floor units every day for
three weeks to air them. She gave evidence of the cost of Dyno Road €149.50, the hire of
dehumidifiers costing €69.99 and €147.60, the hire of carpet cleaners costing €100 and
€38.44, and she referenced the receipts on the RTB file showing the payments made by
the Appellant Landlords. She said also the average electricity bill for the commercial units
was approximately €80 and over the period of cleaning and drying out of the ground floor
units the electricity bill was approximately €279. She said that the actual cost incurred
due to the blockage exceeded the €658 of the deposit retained but that she had
compromised on the electricity bill.
She said that she was not aware if there was a baby in the dwelling during the tenancy
but she knew the Respondent Tenant and his girlfriend were living in the dwelling during
the tenancy. She said that she was also aware that different people were coming and
going from the dwelling at different times. She said that the Respondent Tenant did not
inform her of any other persons residing in the dwelling during the tenancy but at the end
of the tenancy he told her that he had friends and visitors from abroad who stayed on
occasion and he said that his girlfriend had moved out several months previously. She
said that the Respondent Tenant got one set of keys when the tenancy commenced and
at the end of the tenancy he handed her four sets of keys.
The first named Appellant Landlord said that on the 21 December 2015 the Respondent
Tenant changed the time of the appointment to meet with her at the dwelling, that this
meeting which was to take place at 11.30 a.m. took place at 4 p.m. She said that
everything at the dwelling seemed to be okay to her, that she explained to the
Respondent Tenant about the blockage and she showed him the receipts. She said that
the Respondent Tenant denied the use of baby wipes and said that the toilet in the
dwelling was flushing fine.
She said that she returned portion of the security deposit to the Respondent Tenant and
he gave her the keys to the dwelling. She said that the Respondent Tenant told her he
was not happy with the retention of €658 being portion of his deposit.
The second named Appellant Landlord said that a new T pipe piece was provided in or
about 2011 for the back section of the down pipe on the outside of the building in which
the dwelling is situate. He said that drains are not maintained as such, he said that it is
only when a blockage occurs that they have to be cleared/maintained. He confirmed that
the private drain alongside the building is the Appellant Landlords responsibility and that
this drain leads to the main drain for which Dublin City Council is responsible. The
Appellant Landlords said that they had contacted Dublin City Council about their private
drain to seek re-assurance that everything was in order which was confirmed to them.
The Appellant Landlords submitted that there were no experts present at the adjudication
and that the Adjudicator had relied upon a letter from the Respondent Tenant`s Architect
which the Appellant Landlords submitted were conjecture. The Appellant Landlords
emphasised the terms of the tenancy, that the Respondent Tenant had an obligation not
to allow anything to obstruct the sewers or drains. They also referenced the house rules
attached to the agreement on the RTB file which specifically state “do not throw baby
wipes down the toilet”. They asserted that baby wipes and cooking oil are a principal
cause of drain blockages particularly for rented properties and this is why they had this
house rule.
In response to questions the second named Appellant Landlord said that leaves did not
cause the blockage which lead to the seepage from the ground floor toilet, that no leaves
were found in the pipe by Dyno Road. He said that Dyno Rod had to power hose the pipe
to clear the blockage and that he saw the wipes being flushed out. He said that he was
present when Dyno Rod attended at the building, within which the dwelling is situate, on
the 9 December 2015, that they lifted the manhole and there was no water present or
visible which meant the blockage was within the down pipe which they then power hosed
up to clear. He emphasised that the blockage was not at the manhole.
He pointed out that leaves are biodegradable, he said that baby wipes are not. He said
that the plug from the interceptor trap is a plug/stopper going into an overflow, that the
plug is to stop smells or vermin coming up through the drain and does not affect the issue
of the cause of the blockage. He said that the missing grill is not significant and did not
give rise to any material getting into the pipe to cause a blockage as alleged.
In response to questions the Appellant Landlords confirmed that the wipes could have
been facial or cleansing/make up wipes as opposed to baby wipes. They also confirmed
that the Respondent Tenant told them he was going to refer the matter of the deposit to
the Residential Tenancies Board.
RESPONDENT TENANT`S CASE:
The Respondent Tenant`s Representative said that there was no baby in the dwelling
during the tenancy. He submitted that the blockage could have been caused by debris
from the roof or the gulley or from lack of maintenance on the Appellant Landlords part.
He pointed out that the Appellant Landlords had been in occupation of the building within
which the dwelling is situate for many years and that they have no maintenance record in
respect of the drains. He pointed out that Dublin City Council`s guidelines indicate that
the failure to maintain private drains could cause a problem.
He also highlighted the obligation of a Landlord to maintain the structure of the dwelling
including the drains.
He also submitted that a 6 x 4 inch grill was missing at the end of the pipe which he said
could lead to debris and rubbish left in the laneway by people which could cause a
blockage. He said that this grill costs €5/6 and that this shows no maintenance was being
carried out. He re-iterated that maintenance of a drain is required. He said he did not
dispute that the blockage could have been caused by wipes but he asserted that this
problem was not caused by the Respondent Tenant. He said that the Appellant Tenant
initially thought he had an obligation to maintain the drains.
He said that on the balance of probability the Appellant Landlords cannot prove that the
Respondent Tenant caused the blockage.
When questioned he said that the missing grill could have led to stuff going into the drain
notwithstanding that the pipe goes straight into the ground. He said that he is a qualified
engineer. He confirmed that all pipes lead into the manhole and he asserted that Dyno
Rod when they lifted the manhole would been able to identify the blockage.
In his final submission the Respondent Tenant`s Representative said that the Appellant
Landlords cannot prove beyond a reasonable doubt that the Respondent Tenant caused
a blockage. He asserted that the lack of maintenance of the drains, the missing grill and a
faulty interceptor part, other causes for the blockage such as debris, that it is difficult to
tell how the blockage was caused or where the blockage was, all demonstrate that the
Appellant Landlord has not proved that the Respondent Tenant caused the blockage. He
asked that the Tribunal award the expense of the Architect`s report as furnished on the
RTB file and submitted a fee note for from the Respondent Tenant`s Architect in this
regard.
6. Matters Agreed Between the Parties
a. The tenancy in the dwelling ended on the 21 December 2015.
b. The rent for the dwelling during the tenancy was €1200 per month.
c. A security deposit of €1200 was paid by the Respondent Tenant to the Appellant
Landlords at the commencement of the tenancy in the dwelling and the Appellant
Landlords retain portion of the security deposit in the sum of €658.
d. No rent arrears arise in respect of the tenancy in the dwelling.
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 Respondent Tenant is liable for the sum of €658 in respect of damages
in excess of normal wear and tear caused to the dwelling during the tenancy and for
breach of the Respondent Tenant`s obligations under the Residential Tenancies Act,
2004 and in particular Section 16(f) thereof.
REASON: The Tribunal finds that while it is the obligation of the Appellant Landlords to
maintain the drains which are an essential part of the dwelling it is the obligation of the
Respondent Tenant not to obstruct the drains. The Tribunal accepts the evidence
furnished by the Respondent Landlords as to the terms of the tenancy under which the
Respondent Tenant had an obligation not to allow anything to obstruct the sewers or
drains and that this was emphasised in the house rules which provided a specific
direction “do not throw baby wipes down the toilet”.
The Tribunal also accepts the Appellant Landlords evidence as to the cost of attending to
the damage arising from the blockage caused to the drains connected to the dwelling.
The Tribunal notes the evidence furnished as to the payments made by the Appellant
Landlords: Dyno Road €149.50; hire of dehumidifiers €69.99 and €147.60; hire of carpet
cleaners €100 and €38.44; additional electricity charges €199 and that she compromised
on the electricity costs retaining €658 of the deposit to cover the Appellant Landlords
costs.
The absence of any professional witness to establish the cause of the blockage makes it
difficult for the Tribunal to assess the cause with absolute certainty. The Tribunal must
weigh up the evidence furnished and on the balance of probability having regard to such
evidence make its findings.
The Tribunal notes that there were a number of visitors and persons staying at the
dwelling with the Respondent Tenant during the tenancy.
The Tribunal notes also the evidence of the second named Appellant Landlord, a
qualified and experienced plumber, that he was present when Dyno Rod attended at the
building, within which the dwelling is situate, on the 9 December 2015, that Dyno Road
lifted the manhole and there was no water present or visible which meant the blockage
was within the down pipe which they then power hosed up to clear. The second named
Appellant Landlord emphasised that the blockage was not at the manhole as suggested.
On the balance of probability on the evidence furnished the Tribunal finds that the cause
of the blockage was the flushing of unsuitable matter in the dwelling down the drain
during the tenancy and that damages of €658 were incurred by the Appellant Landlords
as a consequence.
2. FINDING: The Appellant Landlords justifiably retained portion of the security deposit
paid by the Respondent Tenant at the commencement of the tenancy in the dwelling in
the amount of €658.
REASON: The Appellant Landlords have justified their retention of portion of the security
deposit held in respect of the tenancy in the dwelling. The reasons set out for Finding 1.
apply to this finding.
3. FINDING: The Respondent Tenant`s claim for expenses of €350 in respect of the
Respondent Tenant`s Architect`s fees is not upheld.
REASON: The Tribunal is of the view that it is not appropriate to exercise the Tribunal`s
discretion with regard to the award of certain costs/expenses particularly in the context of
the findings at 1. and 2. above.
8. Determination:
Tribunal Reference TR0416-001742
In the matter of Lorraine Cranston, David Cranston (Landlord) and Conor Daly
(Tenant) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
The Respondent Tenant`s claim for deposit retention in respect of the tenancy in the
dwelling at 103a Malahide Road, Donnycarney, Dublin 3 is not upheld.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
11 July 2016.
Signed:
Louise Moloney Chairperson
For and on behalf of the Tribunal.

 

 

 

 

 

Castletown Foundation Ltd v Magan

Reported In: [2018] 11 JIC 2104
Neutral Citation: [2018] IEHC 653
Docket Number: [2018 No. 5971 P.]
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice Robert HaughtonDiscussion
104
Clearly the Circuit Court, and that court alone, has original jurisdiction to grant a new tenancy, or to determine and grant compensation for disturbance or improvements, where such entitlements are proven to exist under the 1980 Act. However, as the Supreme Court noted by its reliance in Kenny Homes on Article 34.3.1, the High Court is invested with full original jurisdiction. This entitles the High Court in appropriate cases to determine issues concerning a claimed entitlement to a new tenancy.

105
It is difficult to discern as a matter of principle why such matters should be limited to determining whether a premises is a ‘tenement’ or whether it is held under a ‘contract of tenancy’. The definition of ‘tenement’ is contained in section 5(1) of the 1980 Act, and it is worthwhile reproducing this because it indicates the extent of the conditions that must be satisfied: –

‘5. (1) In this Act ‘tenement’ means –

(a) premises complying with the following conditions:

(i) they consist either of land covered wholly or partly by buildings or of a defined portion of a building;

(ii) if they consist of land covered in part only by buildings, the portion of the land not so covered is subsidiary and ancillary to the building;

(iii) they are held by the occupier thereof under a lease or other contract of tenancy express or implied or arising by statute;

(iv) such contract of tenancy is not a letting which is made and expressed to be made for the temporary convenience of the lessor or lessee and (if made after the passing of the Act of 1931) stating the nature of the temporary convenience; and

(v) such contract of tenancy is not a letting made for or dependent on the continuance in any office, employment or appointment of the person taking the letting;

or

(b) premises to which section 14 or 15 applies.’

Section 14 relates to premises which, prior to 1960, were subject to the Rent Restrictions Act 1946 provided they were not letting for temporary convenience, or dependent on the continuance of the tenant in any office or employment.

Section 15 relates to ‘a dwelling, being a house or a separate and self-contained flat, which immediately before the passing of the Rent Restrictions (Amendment) Act, 1967, was a controlled dwelling’ subject to certain rateable valuation requirements of some complexity.

106
These provisions raise many potential issues which Kenny Homes suggests can be determined by the High Court in an appropriate case. It is notable that in that case Costello P. at full trial determined not only the question of whether there was a contract of tenancy, but also whether land not covered by buildings was subsidiary and ancillary to the filling station.

107
While these issues have been described as ‘threshold’ issues, in my view they are better characterised as issues related to conditions that must be satisfied for a tenant to have an entitlement to claim a new tenancy. Why then should the High Court be excluded, even in an urgent case, from determining whether a tenant is disentitled to a new tenancy by virtue of section 17, or at any rate by virtue of one of the circumstances provided for in section 17( 1) or (2) where no discretion is vested in the Circuit Court? I cannot discern any difference in principle between issues raised by section 5 and disentitlement issues raised in section 17. This question of principle does appear to have been addressed in Cuprum, and with the greatest of respect to Barrett J. I do not accept that the decision of Costello P. in Kenny Homes is as narrow in effect as he suggests in paragraph 26 of his judgment. Section 17 sets out restrictions on entitlement which could equally be regarded as circumstances or conditions which prevent a tenant having an entitlement. The drafters of the legislation and the Oireachtas cannot have intended that issues arising under section 5 could be determined by the High Court in an urgent case, but issues arising under section 17 could not.

108
What does emerge clearly from the jurisprudence is that the High Court should only determine issues of entitlement under the 1980 Act where there is urgency. This is very important in light of the statutory jurisdiction of the Circuit Court which this court should respect.

Urgency
109
In my view the case for urgency is not made out by the plaintiff, or at any rate does not survive either or both of (1) the purchaser taking over the Sancus debt and security, and (2) this court’s decision to grant summary judgment in respect of the arrears of rent.

110
So far as the court and the parties have been informed, the trustee’s loan interest obligations have now reduced to 0%, although ‘the loan is subject to retrospective repricing if the sale of Castletown does not complete in a timely manner.’ (Trustees letter by email of 24th September, 2018). Although the purchaser ‘is in a position to exercise control over the asset upon short notice’ (A & L Goodbody letter of 2nd October, 2018), there is no evidence to suggest that this is imminent or will even happen in the medium term or within an agreed timeframe. Nor is there any evidence that the plaintiff and purchaser cannot await the determination of the defendant’s claim to a new tenancy in the Circuit Court, or that the plaintiff or trustee are not in a position to preserve and maintain Castletown Cox over the period of time within which it may be anticipated the Circuit Court will determine the Landlord and Tenant Civil Bill – in respect of which the plaintiff herein has yet to seek particulars or deliver a defence. By comparison there was real urgency in Kenny Homes (lack of public liability insurance and the running of ‘designated area’ time limits).

111
However while the issue of entitlement to a new tenancy should proceed in the normal way in the Circuit Court, I am of the view that the plaintiff should not be precluded from litigating section 17 issues in the High Court if, before a trial is reached in the Circuit Court, there is genuine and supervening urgency that justifies the High Court exercising its jurisdiction. This is not to be taken as a licence for the plaintiff to prompt the purchaser into actions that bring matters to a head, and should the High Court be asked to try the section 17 issues ‘as a matter of urgency’ it will be incumbent on this court to scrutinise the relationship and correspondence between the plaintiff and the purchaser in its entirety before acceding to any such request.

Conclusion
112
Accordingly rather than striking out the reliefs sought at numbers 2, 3, 4 and 5 in the Plenary Summons – being the reliefs at numbers 32 – 35 inclusive in the Statement of Claim, and related pleas – I will grant a stay on the plaintiff pursuing those reliefs pending the final determination of the Landlord and Tenant Civil Bill, but I will grant the plaintiff liberty to apply.

113
While I have already determined that the plaintiff is entitled to pursue its claim in relation to the validity or otherwise of the purported termination of the Letting Agreement for non-payment of rent, I am of the view that it would not be an efficient or cost saving exercise for that issue to be determined in isolation by this court. Rather it should be determined by the Circuit Court because it will inevitably arise as an issue that falls to be determined under section 17. In conclusion absent compelling urgency these issues should be determined in a timely fashion at the trial of the Landlord and Tenant Civil Bill proceedings. While I will hear the parties further in relation to this, I propose to apply the stay to this issue also.

Summary
114
There will be summary judgment against the defendant in respect of the arrears of rent up to and including 12th April, 2018 in the sum of €571,893. I will hear counsel further in relation to –

(a) the framing of the order to reflect the obligation of the defendant to withhold and remit to the Collector General 20% by way of Withholding Tax;

(b) the claim to interest pursuant to the Courts Act 1981;

(c) whether there should be any stay on the judgment.

115
The court declines to strike out or dismiss the plaintiff’s claims in these proceedings related to the purported termination of the Letting Agreement dated 15th December, 2010, and related reliefs such as those sought at no.s 1 and 5 in the Plenary Summons, on any of the grounds raised by the defendant. I will hear the parties further in relation to staying the plaintiff’s claims to these reliefs in these proceedings pending the determination in the Circuit Court of issues that may arise as to the validity of the purported termination of the Letting Agreement.

116
The court declines to strike out the reliefs sought at numbers 2, 3, 4 and 5 in the Plenary Summons – being the reliefs at numbers 32 – 35 inclusive in the Statement of Claim, and related pleas, on any of the grounds raised by the defendant.

However, a stay will be granted on the plaintiff pursuing those reliefs in these proceedings pending the final determination of the defendant’s application for a new tenancy in the Landlord and Tenant Civil Bill proceedings, but in respect of this stay the plaintiff will have liberty to apply.

 

Doyle v Private Residential Tenancies Board

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dunivya v Private Residential Tenancies Board

Reported In: [2016] 2 JIC 0101, 2016 WJSC-HC 5853
Neutral Citation: [2016] IEHC 41
Docket Number: Record No. 2015/187/MCA
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr Justice Max BarrettMr Justice Max Barrett
1
Must a notice of termination served on a “Part 4 tenant” under s.34(b) of the Residential Tenancies Act 2004, as amended, state a reason for that termination?

2
On 27th November, 2010, Ms Dunivya, the appellant tenant, entered into a tenancy agreement with Mr Gibson. On 27th May, 2011, this tenancy became what is known, by virtue of s.29 of the Act of 2004, as a “Part 4 tenancy”. This was the first of a potentially unending series of rolling four-year tenancies that could arise under s.41 of the Act of 2004. Under s.28 of the Act of 2004, the standard four-year lifespan of this initial Part 4 tenancy was due to end on 26th November, 2014.

3
On 18th June, 2014, Mr Gibson served a notice of termination requiring Ms Dunivya to vacate her rented dwelling by 26th November, 2014 at the latest. Had this been a valid notice of termination, it would have had the effect of preventing a second four-year tenancy arising for Ms Dunivya. The sole deficiency contended to arise in this notice of termination was that it did not comply with the requirements of s.62(1)(e) of the Act of 2004 in that it did not state the reason for the termination.

4
On 17th July, 2014, Ms Dunivya made application to the Private Residential Tenancies Board contesting the validity of the notice of termination. The Board referred her complaint to an adjudication hearing. This hearing took place on 12th September, 2014.The landlord was in attendance but there was no appearance by Ms Dunivya. The adjudicator determined that the notice of termination served on Ms Dunivya accorded with the provisions of the Act of 2004. Ms Dunivya appealed the adjudicator’s finding to what is known, pursuant to s.102 of the Act of 2004, as a Tenancy Tribunal.

5
The Tribunal conducted its hearing on 1st April, 2015. It was satisfied that the notice of termination complied fully with s.62 of the Act of 2004, with the exception of s.62(1)(e). However, the Tribunal was satisfied that a reason did not need to be given for termination as it came within the parameters of s.34(b) of the Act of 2004. Ms Dunivya has appealed against this last-mentioned finding. She claims that the Tenancy Tribunal erred in law by finding that a reason did not need to be given for the termination of her tenancy.

6
Various contentions of fact were raised by Ms Dunivya during the hearing of the within appeal. She claimed that certain Brazilian tenants who lived downstairs from her rented dwelling were very loud and played football inside their rooms. She claimed that she was not provided with a rent book. She claimed that Mr Gibson encouraged other tenants to foment allegations of anti-social behaviour against her. She claimed too that the service of the notice of termination was the manifestation of a long-formed desire on the part of Mr Gibson to be rid of her. In making these various claims Ms Dunivya appears, with respect, to have mistaken the form of the within appeal. The Oireachtas, perhaps because it faced the difficult challenge of protecting tenants from unlawful action by landlords, and protecting landlords from unwarranted protraction in the vacation of premises, has, in s.123(3) of the Act of 2004, confined appeals to the High Court to appeals on points of law only. So the above-mentioned issues raised by Ms Dunivya are not a matter for this court in this appeal. However, the court cannot but note in passing that there are the proverbial two sides to every story and that there is evidence before the court to suggest that Ms Dunivya is a most challenging neighbour and tenant.

7
In terms of applicable law, the key provisions of the Act of 2004 are ss.34, 57 and 62. The relevant portions of each of these provisions are considered hereafter.

8
Section 34 identifies how a Part 4 tenancy may be terminated by a landlord. Section 34(a) identifies certain grounds on which this may be done. Section 34(b) is the relevant provision, so far as the within application is concerned. It has the effect that irrespective of whether any of the grounds referred to in s.34 (a) exist, a Part 4 tenancy may be terminated if,inter alia, ‘a notice of termination giving the required period of notice is served by the landlord in respect of the tenancy’. The ‘required period of notice’ under s.66 of the Act of 2004 is 112 days; Mr Gibson gave Ms Dunivya 166 days’ notice, so he was more than covered in this regard.

9
Section 57 provides that the purpose of Part 5 of the Act, in which it sits:

‘…is to specify the requirements for a valid termination by the landlord or tenant of a tenancy of a dwelling, whether the dwelling is –

(a)…or

(b) one to which both this Act and that Part [Part 4] applies (in which case those requirements are in addition to the requirements of that Part with regard to the termination of a Part 4 tenancy…)’. [Emphasis added].

10
The underlined text has the effect that the Part 5 requirements of the Act of 2004 apply in addition to those ofs.34(b).

11
Section 62(1) sits in Part 5. It requires that ‘A notice of termination to be valid shall…(e) if the duration of the tenancy is a period of more than 6 months, state (where the termination is by the landlord) the reason for the termination’. There is nothing in the Act of 2004 to suggest that this requirement does not apply to the notice of termination that is required under s.34(b). Thus the court’s answer to the question posed in the opening sentence of this judgment is that a notice of termination served on a “Part 4 tenant” under s.34(b) of the Act of 2004 must state a reason for that termination.

The Residential Tenancies (Amendment) Act 2015
12
Section 30 of the Act of 2015 has inserted a new s.64A into the Act of 2004. The new s.64A provides as follows:

‘On the hearing of a complaint under Part 6 [‘Dispute Resolution’] in respect of a notice of termination, an adjudicator or the Tribunal, as the case may be, may make a determination that a slip or omission which is contained in, or occurred during the service of, the notice of termination shall not of itself render the notice of termination invalid, if he or she or it, as the case may be, is satisfied that –

(a) the slip or omission concerned does not prejudice, in a material respect, the

notice of termination, and

(b) the notice of termination is otherwise in compliance with the provisions of this Act.’

13
Section 30 (and hence the new s.64A) commenced in effect on 8th January last by virtue of the Residential Tenancies (Amendment) Act 2015 (Commencement of Sections 30 and 42 and Part 4) Order 2016.

14
The court notes that the within proceedings, though they concern an appeal from a Tenancy Tribunal, have issued against the Board as respondent. The court notes too that s.123(5) of the Act contemplates that among the directions that might be made by the court in the exercise of its inherent jurisdiction to supervise inferior tribunals, include a direction to the Board (not the Tenancy Tribunal) ‘to cancel the determination order concerned or to vary it in such manner as the Court specifies…’. Presumably this is because although a Tenancy Tribunal is required by s.103(6) of the Act of 2004 to ‘be independent in the performance of its functions’ it is nonetheless established, and operates, under the auspices of the Board – though it might perhaps be contended that any direction that would follow an appeal ought more appropriately to issue to the relevant Tenancy Tribunal. In passing, given that the within appeal is in effect, though not form, a species of judicial review, the court considers that consistent with, albeit not required by, O. 84, r.22(2) of the Rules of the Superior Courts (1986), as amended, Mr Gibson, as landlord, ought properly to have been joined as a notice-party to the within proceedings, being a party directly affected by same.

15
As a consequence of its finding as to the point of law raised on appeal, and mindful that the landlord was not joined to the within proceedings as a notice-party, the court will remit these proceedings to the Board for it to convene a Tenancy Tribunal to consider Ms Dunviya’s complaint afresh in light both of the within judgment and any (if any) such further representations as Ms Dunivya or Mr Gibson may make. Should the Tenancy Tribunal so convened consider it proper to invoke s.64A of the Act of 2004 it may or may not wish to note this Court’s view that (a) the omission of the reason for the termination from the notice of termination of 18th June, 2014, has not resulted in any prejudice of the type described in s.64A(a) of the Act of 2004, and (b) apart from the omission of the reason for termination, the notice of termination of 18th June, 2014, appears otherwise to be in compliance with the Act of 2004; indeed the contrary appears never to have been pleaded by Ms Dunivya.

Hughes v Collins

Neutral Citation: [2017] IESCDET 63
Reported In: [2017] 6 JIC 2304
Jurisdiction: Ireland
Court: Supreme Court (Ireland)
Judge: Denham C.J., Clarke J., MacMenamin J.
3. The Order appealed against
In its judgment delivered on the 20th March, 2017, the Court of Appeal upheld the findings of the High Court which can be described under three broad headings being first, the application of provisions of the Residential Tenancies Act 2004 (‘the Act’); second, the conduct of the receiver; and third, the proofs required for granting a mandatory injunction. First, the Court of Appeal found that the service of the notice to terminate the tenancy held by Mr. Collins was validly served in accordance with s. 6 of the Act. Second, the High Court was held to have been correct in accepting jurisdiction to hear the case under the Act because the dispute was out of time for reference to the Private Residential Tenancies Board under s. 80 and Mr. Collins had engaged an alternative remedy under s. 91 of the Act. Third, neither the institution of the proceedings by Mr. Hughes nor the service of the notice to terminate constituted objectionable behaviour that could bar the taking of the proceedings against Mr. Collins. Finally, the proofs required for the granting of the mandatory injunction sought were held to have been met by Mr. Hughes. On that basis it was ordered that the appeal be dismissed and costs were awarded against Mr. Collins.

4. The Contentions of the Parties
Mr. Collins raises three broad categories of complaint which he contends are of manifest public importance such that leave to appeal to this Court should be granted. First, it is submitted that the High Court and Court of Appeal disregarded provisions of the Residential Tenancies Act 2004 in a manner that may affect the public’s future reliance on the Act. Mr. Hughes submits that the findings of the High Court and Court of Appeal in respect of the Act related primarily to whether Mr. Collins had received the notice to terminate and, accordingly, neither court made any significant determination of general application concerning the provisions of the Act. Second, Mr. O’Connor makes a number of claims in relation to rights which he contends have been infringed by the orders of the High Court and Court of Appeal. Mr. Hughes submits that those matters are specific to the facts of these proceedings and, it is said, manifestly do not involve any matter of public importance. Finally, Mr. Collins submits that the Court of Appeal erred in its upholding the grant of a mandatory injunction in circumstances where Mr. Hughes had failed to meet the necessary requirements to obtain the injunction. As an additional point Mr. Hughes contends that the findings of the High Court and Court of Appeal concerning the substance of the case have yet to be subject to a final determination at trial and it is therefore premature to apply for leave to appeal to this Court.

5. Discussion
As is clear from a range of determinations made by this Court since the 33rd Amendment to the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court has simply been in error in some material respect the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes clear that an appeal to this Court, whether directly from the High Court under Art. 34.5.4 or from the Court of Appeal under Art. 34.5.3, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interest of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interest of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more the interests of justice will not require a further review on appeal to this Court.

Against that background it is necessary to address the basis on which it is said that the constitutional threshold is met in this case.

It is important to emphasise that the decision of the High Court (as upheld by the Court of Appeal) involves a decision made at an interlocutory stage. The decision was to grant a mandatory interlocutory injunction. However, that decision does not finally determine the rights and obligations of the parties which remain to be determined at the full hearing. That decision only relates, therefore, to the situation which is to pertain between the date of the granting of the interlocutory injunction and the trial of the action.

So far as the merits of the case are concerned, the only issue which the High Court had to consider was as to whether Mr. Hughes had established a strong arguable case. It is clear, therefore, that this case involves the application of well established principles to the particular circumstances of the case. Furthermore, it needs to be emphasised that an appeal to this Court will rarely be permitted, under the new constitutional architecture in place since the coming into force of the 33rd Amendment of the Constitution, in relation to orders made at the interlocutory stage unless those orders, in themselves, involve an issue of general public importance. The fact that there might, arguably, be issues of general public importance involved in the proceedings generally does not mean that an interlocutory order which does not finally determine rights and obligations itself gives rise to an issue of general public importance.

In those circumstances the Court is not satisfied that it has been established that the constitutional threshold has been met. Whether an issue of general public importance might be said to arise after the full trial of this action and any appeal therefrom to the Court of Appeal is a matter to be considered if and when an application is made in those circumstances.

6. Conclusion
The Court, therefore, refuses leave to appeal under Art. 34.5.3.

And it is hereby so ordered accordingly.

Hayes v The Minister for the Environment, Community and Local Government

Reported In: [2018] 11 JIC 0902
Neutral Citation: [2018] IEHC 623
Docket Number: [2016 No. 3563 P]
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Mr. Justice AllenJUDGMENT of Mr. Justice Allen delivered on the 9th day of November, 2018
1
This is an application on behalf of the fourth defendant, by notice of motion issued on 22nd October, 2017, for an order, whether pursuant to O. 19, r. 28 of the Rules of the Superior Courts or the inherent jurisdiction of the court to dismiss the plaintiff’s claim as against the fourth defendant on the grounds that it discloses no reasonable cause of action and is bound to fail.

2
There was no dispute as to the applicable principles of law as laid down by the decisions of the High Court in Barry v. Buckley [1981] I.R. 306 and the Supreme Court in Keohane v. Hynes [2014] IESC 66, to which the court was referred.

3
It was agreed at the bar that the jurisdiction invoked is to be exercised sparingly and with caution and only in the clearest cases. It was also agreed and it is well established that an application such as this, whether pursuant to O. 19, r. 28 or the inherent jurisdiction of the court will not succeed where the deficiency in the pleading can be rectified by an amendment, or the case might be saved by an appropriate amendment of the pleadings. See for example Lawlor v Ross [2001] IESC 110.

4
On the pleadings and in the affidavits filed on the motion there was some lack of clarity as to dates but there is no real contest on the substance of the facts.

5
In 2005 Mr. Keith Doyle and Mrs. Margaret Doyle bought a property at 29, The Turnpike, Santry Cross, Ballymun, Dublin 9. That purchase was funded in whole or in part by a loan from Ulster Bank Ltd, secured by a charge on the property, which in due course was registered as a burden on the folio.

6
The plaintiff’s case is that she was a tenant of the property from the time it was acquired by Mr. and Mrs. Doyle. The amended statement of claim pleads on the one hand that the plaintiff entered into her tenancy on or about 28th January, 2006 and on the other that she was in actual possession at the time of the mortgage by Mr. And Mrs. Doyle to Ulster Bank, in or about October, 2005 to which she pleads she is a stranger.

7
Whether the plaintiff’s tenancy shortly predated or shortly post-dated the Ulster Bank loan and charge it does not appear to be contested that the plaintiff was a tenant in the property continuously from at least January 2006.

8
The case pleaded is that Ulster Bank was on notice of the plaintiff’s tenancy because it predated the charge and because the Bank was aware that the Doyles did not reside at the property but rather at another specified address. If the statement of claim could have been more clearly drafted, the substance of the plaintiff’s case appears to me to be that Mr. and Mrs. Doyle, to the knowledge of Ulster Bank, bought the property as a buy to let and so consented to and acquiesced in the letting to the plaintiff.

9
Mr. and Mrs. Doyle got into difficulty with their loan and on 20th August, 2013 Ulster Bank issued a Civil Bill for possession in the Dublin Circuit Court. The Civil Bill named Mr. and Mrs. Doyle as defendants and it was addressed to them and to all persons in actual occupation of the property. The statement of claim acknowledges that the Civil Bill was served on the plaintiff but it is said that ‘ she was not a party to the proceedings and no order was sought as against her.’ It is now suggested that the copy Civil Bill served on the plaintiff was a ‘ courtesy copy’ and that ‘ no submission could have prevented Ulster Bank from being entitled to the relief sought in the Civil Bill in the possession proceedings as against the Doyles’. This, to my mind, betrays a less than full understanding of the claim of Ulster Bank and a misunderstanding of the reason why, in accordance with the Circuit Court Rules, the Civil Bill was served on the plaintiff as the person in acutal possession of the property as well as on the named Defendants.

10
Whether rightly or wrongly the plaintiff did not avail of the opportunity made available to her by the service on her of the Civil Bill to make the case in the Circuit Court that she was in possession of the property as a tenant of Mr. and Mrs. Doyle, with the consent of Ulster Bank and that she should not be disturbed and on 26th March, 2015 the Circuit Court made an order. If, as is pleaded, there was nothing that the plaintiff could have said that would have affected Ulster Bank’s claim against the Doyles, she was entitled to make the case that whatever order the Circuit Court might make should not affect her rights. I will return to the precise terms of the Circuit Court order.

11
According to the statement of claim, on 1st May, 2015 (which of course was after the order for possession had been made) the plaintiff’s solicitors wrote to the solicitors for Ulster Bank ‘ requesting information and seeking to engage with Ulster Bank on the plaintiff’s position’. Following some further engagement in the meantime, it is said, Ulster Bank wrote to the plaintiff’s solicitor on 18th May, 2015 indicating that Ulster Bank did not engage with tenants once an order for possession had been obtained but that the plaintiff would get adequate notice before a repossession would be arranged.

12
On 16th June, 2015 Ulster Bank wrote a letter. According to the statement of claim this was a letter written to the plaintiff advising her that she was required to vacate the dwelling within 112 days. In fact the letter was addressed to ‘ The Tenant’ rather than to the plaintiff personally. The letter did, as is pleaded, state that the property was ‘ subject to a respossesion order/has been voluntarily surrendered by the owner(s) of the property’ and asserted that this meant that the property would come into possession of the Bank and be sold. The letter went on to ask the addressee to contact his or her ‘ landlord/owner of the property/estate agent’ to confirm receipt of the letter.

13
The case pleaded is that the plaintiff ‘ treated this correspondence as a putative termination of her tenancy’ and sought to make the case to the Private Residential Tenancies Board, on a complaint naming Ulster Bank as the respondent, that it was an invalid notice of termination. The Private Residential Tenancies Board, of its own motion, raised an issue as to whether it had jurisdiction to deal with the complaint, specifically by reference to whether Ulster Bank was the plaintiff’s landlord. The case made by the plaintiff, by reference to the definition of ‘ landlord’ in section 5 of the Residential Tenancies Act, 2004 was that Ulster Bank was the ‘ person for the time being entitled to receive the rent paid in respect of a dwelling by the tenant thereof’ and so was her landlord. Ulster Bank made the case that it had no privity with the plaintiff and had never received any rent in respect of the dwelling. On 27th October, 2015 the Private Residential Tenancies Board decided that it did not have jurisdiction and following an appeal by the plaintiff, that decision was affirmed by the Circuit Court on 25th January, 2016.

14
In the meantime, by deed dated 29th September 2015 Ulster Bank had assigned its charge over the property to the fourth defendant. The case pleaded is that Ulster Bank refused to provide the plaintiff with the name of the new charge holder and on 13th February 2017 this court made an order for non-party discovery by Capita Asset Services (Ireland) Ltd, to whom the plaintiff’s solicitors had been told by Ulster Bank to address all future correspondence. I cannot forbear to observe that I do not understand the reticence on the part of Ulster Bank to identify the fourth defendant as the transferee of the charge or, for that matter, the need for the order for non-party discovery, because the transfer of the charge from Ulster Bank to the fourth defendant was registered in the Land Registry on 15th October 2015 so that the ideentity of the fourth defendant was a matter of public record.

15
The case made by the plaintiff in the action is at best ambiguous. On the one hand she claims to occupy the dwelling on foot of a valid Part IV tenancy which can only be terminated in accordance with the provisions of the 2004 Act and has not been determined, and on the other that she is left in a limbo situation. The plaintiff claims to have statutory rights which were not altered by the Circuit Court order for possession and yet claims that she enjoys no security of tenure and ‘ finds herself vulnerable to enforcement action…on foot of the order for possession’ and to ‘ live in fear that her home will be repossessed without notice to her and/or without recourse to anybody with power to adjudicate on the lawfulness of the termination of her tenancy and/or ensure that her rights as tenant are vindicated.’

16
The plaintiff’s case is that she went into occupation of the dwelling on foot of a tenancy agreement with Mr. and Mrs. Doyle which was renewed from time to time. To the extent, if any, to which there may be any issue about that, this application must be dealt with on the basis that the plaintiff will establish that fact.

17
The plaintiff’s case is that she occupies the dwelling on foot of a valid Part IV tenancy which can only be terminated in accordance with the provisions of the 2004 Act. To the extent, if any, to which there may be any issue about that, this application must be dealt with on the basis that the plaintiff will establish that that is so.

18
The plaintiff’s case is that the Circuit Court was not empowered to terminate her statutory tenancy. I do not understand the fourth defendant to contend otherwise.

19
The plaintiff relies on the Ulster Bank letter of 16th June, 2015 requiring her to vacate the dwelling within 112 days as a ‘ putative termination of her tenancy’. The defendant pleads that it is a stranger to that letter but the letter does not purport to terminate any tenancy it is absolutely clear that Ulster Bank never relied on that or any other letter as terminating the plaintiff’s tenancy. Ulster Bank was steadfast in its position that it was not the plaintiff’s landlord.

20
The plaintiff’s case is that she has a valid and subsistent tenancy with Mr. and Mrs. Doyle which has not been terminated. The statement of claim is in large part a synopsis of the position taken by the plaintiff and Ulster Bank in correspondence rather than an assertion of what the correct legal position is. The plaintiff moves from the proposition that she has a valid and subsistent tenancy with Mr. and Mrs. Doyle to the proposition that by reason of the finding of the Private Residential Tenancies Board and the Circuit Court that Ulster Bank was not her landlord, she cannot seek to enforce her statutory rights. It seems to me that this simply does not follow.

21
Having repeatedly asserted her tenancy and statutory rights, the plaintiff does not claim against the fourth defendant any declaration of those rights but rather claims a declaration that the fourth defendant, as the party entitled to the benefit for the order for possession, is ‘ the landlord of the premises’.

22
The plaintiff goes on to claim, in the alternative, a variety of declarations as to the compatibility of various sections of the Residential Tenancies Act, 2004 with the State’s obligations under various provisions of the Constitution and the European Convention on Human Rights Act, 2003.

23
It seems to me that the plaintiff’s challenge to the compatibility and effectiveness of the 2004 Act is not an alternative to her claim that the fourth defendant is her landlord. In my view it simply does not follow from the fact (if it be the fact) that the fourth defendant is not her landlord (or ‘ the landlord of the premises’) that the 2004 Act does not apply to her tenancy. Neither, in my view, is it necessary for the plaintiff to establish that the fourth defendant is her landlord to make the case that the fourth defendant’s rights under the charge are subject to her tenancy.

24
From the time I first read the papers in this case it seemed to me that what it was all about was the effect of the order for possession made by the Circuit Court on 23rd March, 2015. That was an order made on a Civil Bill claiming an order for delivery of possession of the property but which ordered ‘… that the plaintiff do recover from the defendants possession…’ of the property. [Emphasis added.]

25
While it is by no means clear from the pleadings, part of the case made on behalf of the plaintiff in argument on this application was that the effect of the Circuit Court order of 23rd March, 2015 was that Ulster Bank’s right to possession was subject to the plaintiff’s tenancy in the property: that is, her tenancy with Mr. and Mrs. Doyle. If that is so, the plaintiff’s fears that she will be put out of her house on foot of the Circuit Court order are groundless.

26
I am unconvinced that these proceedings were necessary, or that the High Court is the proper forum in which, to make the case that the mortgagee is bound by the plaintiff’s tenancy and/or that the plaintiff’s right to possession of the property is unaffected by Circuit Court order but neither am I satisfied that that claim is bound to fail.

27
If that claim were made out, it seems to me that the attack on the compatibility and adequacy of the Residential Properties Act would fall away.

28
The primary relief claimed by the plaintiff in the prayer in the statement of claim is a declaration that the fourth defendant as the person now entitled to the benefit of the order made by the Circuit Court on 23rd March, 2015 is ‘ the landlord of the premises’ and that the provisions of the 2004 Act apply in respect of the plaintiff’s tenancy.

29
Counsel for the fourth defendant submits that this claim seeks to raise the same issue as was decided by the Private Residential Tenancies Board and the Circuit Court and is res judicata. I accept that submission. Judicial tribunals include, besides the courts, statutory tribunals. The Private Residential Tenancies Board is such a tribunal. By section 84 of the 2004 Act the Board has express jurisdiction to determine whether a dispute referred to it comes within its jurisdiction, subject to the right of any party to the dispute to appeal to the Circuit Court. The issue identified by the Board in this case was whether Ulster Bank, against whom the complaint had been made, was the plaintiff’s landlord. The Board and the Circuit Court on appeal from the Board decided that it was not.

30
I reject the argument made on behalf of the plaintiff that the decision of the Board and the Circuit Court was simply that it did not have jurisdiction and not that Ulster Bank was not the plaintiff’s landlord. The finding of lack of jurisdiction was a direct consequence of a decision that Ulster Bank was not the plaintiff’s landlord.

31
The case made against the fourth defendant is that, as the assignee of Ulster Bank, it took the charge subject to all of the rights and obligations of Ulster Bank. The plaintiff’s application to the Private Residential Tenancies Board appears to have been made on 14th July 2015. The plaintiff was not then aware of the transfer and the fourth defendant was not party to that process but even on the plaintiff’s case, the fourth defendant is the privy of Ulster Bank. If the fourth defendant would have been bound by a finding by the Board or by the Circuit Court on appeal that Ulster bank was the landlord, it follows that it is bound by, or entitled to the benefit of, the finding that it was not.

32
In response to the short affidavit of Ronan Hopkins sworn on behalf of the fourth defendant in support of this application, the plaintiff’s solicitor, Mr. Gary Lee, swore quite a long affidavit summarising and exhibiting the correspondence with and from Ulster Bank and the fourth defendant since the making of the order for possession and dealing with the plaintiff’s complaint against Ulster Bank, the Private Residential Tenancies Board’s decision, and the appeal therefrom to the Circuit Court.

33
In that affidavit Mr. Lee expressed extreme concern that Mr. Hopkins, in his affidavit grounding this application, sworn on 20th December, 2017, had failed to deal with the fact that on 1st June, 2017, after it had been joined as a defendant, the fourth defendant ‘ sought to appoint’ Mr. Paul McCleary of Grant Thornton as receiver over the property on foot of the mortgage entered into by the original landlords. Mr. Lee suggested that the ‘ appointment’ of the receiver and correspondence exchanged was relevant to this application but not, clearly, why. It is not clear to me whether there is a challenge to the validity of the appointment of the receiver or, if there is, what the basis of any such challenge might be.

34
I am unconvinced that the appointment (or purported appointment) of the receiver had any effect on the plaintiff’s claim as pleaded, or the fourth defendant’s application to have that claim dismissed but it does, at least potentially, go to the necessity for continuing this complicated action. For the avoidance of doubt, I do not express any concluded view but merely identify it as a potential practical opportunity to resolve the issues between the plaintiff and the fourth defendant in a way that might avoid the necessity for continuing the the action against any of the defendants.

35
On 2nd June, 2017 Mr. McCleary wrote to ‘ the occupant’ of the property giving notice of his appointment as receiver and enclosing a copy of a Deed of Appointment of 1st June, 2017 over certain assets of Mr. and Mrs. Doyle, specifically, the property at Santry Cross. Mr. McCleary enclosed a questionnaire entitled ‘ Tenant Questionnaire’ and asked that all rental payments be made to him in his capacity as receiver.

36
The plaintiff’s solicitor in response asked a number of questions and expressed his client’s fear that steps might be taken averse to her and threatened proceedings against the receiver but he did not engage with him. Specifically he did not give particulars of the plaintiff’s tenancy in the property or offer to pay the rent.

37
On 20th June, 2017 O’Dwyer Real Estate Management who (as Mr. Cleary had said in his letter to the plaintiff of 2nd June, 2017) had been appointed as property managers wrote to ‘ the occupier’ of the property asking for access to the property ‘ so that [they might] effectively manage any issues which [might] arise during the course of your tenancy’ and seeking ‘to collect all rental income from this property in accordance with your lease’. Enclosed with that letter was a ‘ tenancy contract form for completion by you’.

38
While Mr. Lee does not explicitly say so there must have been some contact between the plaintiff and O’Dwyer Real Estate Management because on 14th July, 2017 O’Dwyer Real Estate Management wrote to the plaintiff by name inviting her to provide a copy of her lease agreement or other proof of valid occupancy and to pay the rent into a designated bank account.

39
On 13th September, 2017 Capita Asset Services (Ireland) Ltd, on behalf of the fourth defendant, wrote to the plaintiff’s solicitor asking for clarification of the basis on which the plaintiff claimed a right to reside in the property. Subject to such clarification, it was said, Capita would seek an instruction from the fourth defendant with regard to ‘ any possible regularisation of the purported tenancy’.

40
The plaintiff’s solicitor appears not to have replied to Capita but instead, on 26th September, 2017, sent copies of all the correspondence to the fourth defendant’s solicitors asking that they should take instructions with respect to the various letters.

41
The last letter to which I will refer is a letter of 21st November, 2017 from O’Dwyer Real Estate Management to the plaintiff directly suggesting that by her alleged failure to allow access to the property for the purpose of an inspection she was ‘ in breach of [her] tenancy obligations’. The letter continued: ‘ By this notice the Landlord gives you a period of 14 days to remedy the breach of your tenancy obligations. Should you fail to remedy the breach, I am entitled to terminate your tenancy pursuant to Part 5 of the Residential Tenancies Acts 2004 to 2015.’

42
I have not seen the deed of charge given by Mr. and Mrs. Doyle to Ulster Bank which was assigned to the fourth defendant and on foot of which the fourth defendant appointed (or purported to appoint) the receiver. It may very well have provided that the receiver was to be the agent of the chargor but the reality is that the receiver is acting on behalf of the fourth defendant in seeking to realise the security. It seeems to me that the receiver has offered to look at the plaintiff’s claim to be entitled to a tenancy and that the receiver’s agent has gone further, asserting that the plaintiff is the tenant and that her tenancy is subject to the Residential Tenancies Acts.

43
I am bound to say that the position adopted by the receiver in his correspondence sits uneasily with that adopted by the fourth defendant in the proceedings but if the plaintiff were to engage with the receiver she might very well establish her tenancy.

44
As far as this application is concerned, I accept the argument made on behalf of the fourth defendant that the plaintiff’s case that the fourth defendant is her landlord is bound to fail but I am not satisfied that she has no case. I find that there is an issue to be determined as to whether the Circuit Court order of 23rd March, 2015 requires the plaintiff to deliver actual possession of the property or whether the fourth defendant’s entitlement to enforce its security is subject to the plaintiff’s tenancy, not with the fourth defendant, but with Mr. and Mrs. Doyle.

45
If the plaintiff wishes I will afford an opportunity to reformulate her claim accordingly.