Termination of Tenancies

 

Cases

Ayanyemi v O’Brien

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1215-001502 / Case Ref No: 1115-22084
Appellant Tenant: Abosede Ayanyemi
Respondent Landlord: Alan O Brien
Address of Rented Dwelling: 38 The Boulevard, Mount Garreth, Tyrellstown ,
Dublin 15,
Tribunal: Mervyn Hickey (Chairperson)
Kevin Baneham, Gene Feighery
Venue: Tribunal Room, PRTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 29 February 2016 at 10:30
Attendees: Abosede Ayanyemi (Appellant Tenant)
Alan O’Brien (Respondent Landlord)
In Attendance: DTI Wordwave Recording Technicians
1. Background:
On 02 November 2015 the Landlord made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred
to an Adjudication which took place on 24 November 2015. The Adjudicator determined
that:
(1) The Notice of Termination served on 14 September 2015 by the Applicant
Landlord on the Respondent Tenant in respect of the tenancy of the dwelling at 38
The Boulavard, Mount Garreth, Tyrellstown, Dublin 15 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 this Order.
(3) The Respondent Tenant shall pay the total sum of €907.20 in rent arrears to
the Applicant Landlord, in 4 consecutive monthly payments of €200, on the 28th day
of each month, followed by one payment of €107.20 on the 28th day of the
immediately succeeding month, commencing on the 28th day of the month
immediately following the date of issue of the Order.
(4) The enforcement of this Order for such payment of €907.20 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 Applicant Landlord on each due
date until such time as the total sum of €907.20 has been paid in full.
(5) 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.
(6) The Respondent Tenant shall also pay any further rent outstanding from 24
November 2015, 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
she vacates the above dwelling.
Subsequently the following appeal was received from the Tenant on 15 December 2015.
The ground of the appeal was Unlawful termination of tenancy (Illegal eviction). The
appeal was approved by the Board on 21 December 2015.
The PRTB constituted a Tenancy Tribunal and appointed Mervyn Hickey, Kevin
Baneham, Gene Feighery 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 29 February 2016 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:
1. PRTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. 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 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 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 also reminded the Parties that as a result of the Hearing that day, the Board would
make a Determination Order which would be issued to the parties and could be enforced
by either of the Parties or in some cases by the Board of the PRTB at its discretion. He
also advised the parties that the Tribunal process was the final step in the dispute
resolution process unless appealed to the High Court on a point of law only [reference
section 123(3) of the 2004 Act].
He asked the Parties if they had any queries about the procedure. There were none.
The parties were sworn in.
5. Submissions of the Parties:
The Appellant Tenant’s Case:
The Appellant Tenant said that she was in receipt of rent supplement payments in the
sum of €811 per month. She said that she ‘topped up’ the rent by paying the balance of
the €1150 herself. She said that in or around November 2015 she had attended at a
social welfare office after the expiry of the fixed term lease and that she had been
provided with a form for the Respondent Landlord to complete in order that the rent
supplement payments in respect of her tenancy could be continued. She said that the
Respondent Landlord wished to sell the dwelling and did not wish to enter into a further
tenancy. Thereafter the Appellant Tenant said she informed the social welfare office of
the position and also that a sale had been agreed for the dwelling. She said that she had
been informed at the social welfare office that a new tenancy agreement was required if
rent supplement payments were to be continued. She said that she was further informed
that if the prospective purchaser of the dwelling agreed to keep her on as a tenant her
rent supplement payments would be continued but otherwise they would be discontinued.
Her rent supplement payments were subsequently stopped when she could not provide a
new tenancy agreement. She said that she had not appealed from the decision to stop
her rent supplement payments.
On being questioned by the Tribunal as to why she had not paid the top-up after rent
supplement had been stopped, the Appellant Tenant stated that she had generally paid
the full amount of rent herself having received the rent supplement payment. With rent
supplement payments having ceased, she said she did not pay any rent.
The Appellant Tenant accepted that she had not paid rent in February 2015. However
she explained this on the basis that there had been certain problems with the dwelling in
respect of the cooker, the washing machine and the carpet on the stairs. The Appellant
Tenant did not put any detail on the complaints regarding the cooker and the washing
machine and she acknowledged that she had not previously raised them with the
Respondent Landlord. In respect of the carpet on the stairs, she said that it had been in a
poor condition, that one of her children had asthma and that she had changed the carpet
at her own expense. She said that she had not complained specifically about the carpet
to the Respondent Landlord at any time although her evidence was that he had said in a
general way at the commencement of the tenancy that nothing in the dwelling could be
repaired. She said that she had not made any arrangement with the Respondent
Landlord prior to replacing the carpet. She had in fact changed the carpet without notice
to him. Her evidence was to the effect that she had off-set the expense she had incurred
in respect of the carpet against the rent due for February 2015. She produced no
supporting evidence to substantiate the purchase of a new carpet for the dwelling. She
estimated that the cost of the carpet was €600.
On being questioned by the Tribunal as to why her appeal application appeared to put in
issue the Notice of Termination and an alleged unlawful termination / illegal eviction, the
Appellant Tenant clarified that she was not disputing either the receipt or the validity of
the Notice of Termination. She also acknowledged receiving the Notice of Termination by
hand and while she could not recall the specific date she said that it was in September
2015. She said that she had appealed because notwithstanding almost daily efforts to
find an alternative place to live for herself and her four children, she had been
unsuccessful in this regard.
The Respondent Landlord’s Case:
The Respondent Landlord said the tenancy had commenced on 1 November 2014; that it
was a fixed term tenancy of 12 months’ duration; that the monthly rent was €1150; that
rent was payable on the first day of the month; and that a security deposit of €1150 had
been paid by the Appellant Tenant and was retained by him. He said that the parties had
entered into an agreement that the security deposit was to be used to pay the arrears of
rent in respect of the month of February 2015. The Appellant Tenant confirmed this
agreement at the appeal hearing.
The Respondent Landlord said that on 14 September 2015 he had served by hand a
Notice of Termination on the Appellant Tenant. The termination date stated in the Notice
was 31 October 2015. This was the date upon which the fixed term tenancy was due to
expire. The reason cited in the Notice for terminating the tenancy was that the
Respondent Landlord intended within three months of the date of termination to sell the
dwelling. He claimed that the Appellant Tenant was overholding since 1 November 2015.
He said he himself was under considerable financial pressure to sell the dwelling and that
his own family home was at risk. He said that a sale had been agreed in respect of the
dwelling but that the sale was in jeopardy due to the fact that the Appellant Tenant was
overholding and vacant possession could not be obtained. He said that his bank had
given him a deadline of the end of January 2016 to sell the dwelling and this deadline had
long since passed. He said that he had only a few weeks to complete the sale or it would
be lost. He claimed that the Appellant Tenant had threatened to delay matters by seeking
to appeal the outcome of adjudication and seeking to adjourn the appeal hearing.
The Respondent Landlord said that the first he had heard of any issue with the cooker,
washing machine or stairs carpet in the dwelling was during the course of the Appellant
Tenant’s evidence to the Tribunal. He denied any breach of obligation on his part in these
regards.
The Respondent Landlord said that the Appellant Tenant had failed to pay any rent on 1
November 2015, 1 December 2015, 1 January 2016 or 1 February 2016. He sought to
recover the arrears as aforesaid.
6. Matters Agreed Between the Parties
(i) The tenancy commenced on 1 November 2014.
(ii) The monthly rent was €1150.
(iii) A security deposit of €1150 was paid by the Appellant Tenant and retained by the
Respondent Landlord.
(iv) The Appellant Tenant remained in occupation of the dwelling at the date of hearing.
(v) The parties had entered into an agreement themselves whereby the security deposit
of €1150 was to be off-set against the rent due for the month of February 2015.
(vi) The Appellant Tenant had not paid any rent in respect of the following months:
November and December of 2015 and January and February of 2016.
7. Findings and Reasons:
Finding No. 1
The Notice of Termination served on 14 September 2015 by the Respondent Landlord on
the Appellant Tenant in respect of the tenancy of the dwelling at 38 The Boulevard, Mount
Garreth, Tyrellstown, Dublin 15, is valid.
Reasons:
The fixed term tenancy was due to expire on 31 October 2015. The Appellant Tenant also
had a ‘Part 4’ tenancy within the meaning of the Act. The Respondent Landlord was
entitled to terminate that Part 4 tenancy pursuant to ground 3 as contained within section
34 of the Act upon giving sufficient notice to the Appellant Tenant and otherwise
complying with the requirements of section 62 of the Act. Ground 3 of section 34 permits
termination of a Part 4 tenancy by a landlord where:
“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.”
The Tribunal is satisfied based upon the evidence given by the Respondent Landlord that
it is – and was at material times – his intention to sell the dwelling within three months of
the termination of the tenancy. The Tribunal is also satisfied that the requirements of
section 62 of the Act (pertaining to the contents of a valid Notice of Termination) have
been met by the Respondent Landlord. The Notice of Termination served on 14
September 2015 is therefore valid.
Finding No. 2
The Appellant Tenant has been overholding at the dwelling since 1 November 2015.
Reasons:
The tenancy of the dwelling having been validly terminated by the Respondent Landlord
on 31 October 2015, the Appellant Tenant has been overholding since 1 November 2015.
The Appellant Tenant has remained in occupation of the dwelling since 1 November 2015
however, and as such she has been – and continues to be until such time as she and all
persons residing therein vacate the dwelling – under an obligation to pay rent to the
Respondent Landlord.
Finding No. 3
The Appellant Tenant is in breach of her obligations arising pursuant to section 16(a)(i) of
the Act and clause 5(a) of the written tenancy agreement dated 1 November 2014, to pay
the rent in full and without deduction as and when it fell due for payment.
Reasons:
The Appellant Tenant accepted that she had not paid any rent in respect of the following
months: February 2015, November 2015, December 2015, January 2016 and February
2016. As the agreed monthly rent was €1150, the total amount of rent arrears is €5750
(€1150 x 5). The parties themselves had come to an agreement whereby the security
deposit of €1150 (which was retained by the Respondent Landlord)
Finding No. 4
The Appellant Tenant’s claim regarding the Respondent Landlord’s breach of obligation is
not upheld.
Reasons:
During the course of the appeal hearing the Appellant Tenant raised complaints regarding
the Respondent Landlord’s breach of obligation and in particular that he had failed to
carry out necessary repairs to the dwelling. She accepted that she had not raised these
particular complaints with the Respondent Landlord at any time and she had therefore not
afforded him an opportunity to address them. She claimed to have incurred expense
replacing the carpet on the stairs but submitted no supporting evidence whatsoever in this
regard. She did not detail the complaints regarding the cooker and the washing machine.
On the basis of the foregoing, the complaints of the Appellant Tenant have not been
established on the evidence and are not upheld.
8. Determination:
Tribunal Reference TR1215-001502
In the matter of Abosede Ayanyemi (Tenant) and Alan O Brien (Landlord) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
1. The Notice of Termination served on 14 September 2015 by the Respondent
Landlord on the Appellant Tenant in respect of the tenancy of the dwelling at 38 The
Boulevard, Mount Garreth, Tyrellstown, Dublin 15, 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 28 days of the date of
issue of the Order by the Board.
3. The Appellant Tenant shall pay the sum of €4600 to the Respondent Landlord
in 4 consecutive monthly payments of €1150, on the 28th day of each month,
commencing on the 28th day of the month immediately following the date of issue of
the Order by the Board, being rent arrears of €5750 having taken account of the
parties’ agreement that the security deposit of €1150 be offset against rent arrears, in
respect of the tenancy of the above dwelling.
4. The enforcement of the Order by the Board for such payment of €4600 will be
deferred and the total sum owing reduced by the cumulative sum paid in the monthly
instalments made by the Appellant Tenant to the Respondent Landlord on each due
date until such time as the total sum of €4600 has been paid in full.
5. 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
Respondent Landlord.
6. The Appellant Tenant shall also pay any further rent outstanding from and
including 1 March 2016, at the rate of €1150 per month or proportionate part thereof at
the rate of €37.81 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, and all persons residing in the dwelling, vacate and give up possession thereof.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 09 March 2016.
Signed:
Mervyn Hickey Chairperson
For and on behalf of the Tribunal.

Baranauskien v Kiernan

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1114-000914 / Case Ref No: 0714-13315
Appellant Tenant: Alice Baranauskiene, Raimundas Baranauskas
Respondent Landlord: Sonia Kiernan
Address of Rented Dwelling: 17 Warren Avenue, Carpenterstown , Dublin 15, D15R5YW
Tribunal: Orla Coyne (Chairperson), Rosemary Healy Rae,
Finian Matthews
Venue: Tribunal Room, PRTB, Floor 2, O’Connell Bridge House, D’Olier Street, Dublin 2
Date & time of Hearing: 14 September 2015 at 10:30
Attendees: Raimundas Baranauskas (Appellant Tenant)
Alice Baranauskiene (Appellant Tenant)
Douvdas Baranauskas (Witness for Appellant Tenant)
Nicola Mantero Belard (Witness for the Respondent)
In Attendance: Gwen Malone Stenographers
1. Background:
On 22 July 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 Mediation which took place on 05 September 2014, however no agreement could be reached.
Subsequently the following appeal was received from the tenant on 05 November 2014. The grounds of the appeal were Deposit retention and Invalid Notice of termination. The appeal was approved by the Board on 14 November 2014.
The PRTB constituted a Tenancy Tribunal and appointed Rosemary Healy Rae, Orla Coyne, Finian Matthews as Tribunal members pursuant to Section 102 and 103 of the Act and appointed Orla Coyne to be the chairperson of the Tribunal (“the Chairperson”).
On 20 August the Parties were notified of the constitution of the Tribunal and provided with details of the date, time and venue set for the hearing.
On 14 September 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:
1. PRTB File
3. Documents Submitted at the Hearing Included:
NONE
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what capacity they were attending the Tribunal. The Chairperson confirmed with the Parties that they had received the relevant papers from the PRTB in relation to the case and that they had received the PRTB document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was a formal procedure but that it would be held in as informal a manner as was possible; that the persons who appealed (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 would then be invited to present her case, and that there would be an opportunity for cross-examination by the Appellant Tenants.
The Chairperson explained that following this, both parties would be given an opportunity to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be recorded by the official stenographer present and she reminded the Parties that knowingly providing false or misleading statements or information to the Tribunal was an offence punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the Board would make a Determination Order which would be issued to the parties and could be appealed to the High Court on a point of law only [reference section 123(3) of the 2004 Act].
5. Submissions of the Parties:
Appellant Tenants’ Case:
The Tenants stated that they had lived in the dwelling for 5 years. On the day that they vacated the dwelling, 28th May 2014, the Landlord was not present. However, the sister of the Landlord attended the dwelling and accepted a key from them. The first-named Appellant Tenant subsequently returned to the dwelling the next day, 29th May 2014, where she met with the Landlord’s sister again and requested the return of her deposit. The Landlord’s sister said that she would talk to the Landlord but that she had been told by the Landlord not to return the full deposit and to only refund €500 to the Tenants. She said the reason she met with the Landlord’s sister the next day after vacating was to obtain the return of the deposit.
The Tenant further stated that the Landlord had wished to increase the rent of the dwelling as a result of which they could no longer afford to stay there. She had received a series of emails from the landlord commencing on the 10th April 2014, but prior to this the Tenant was approached by the Landlord and they had been discussing leaving the dwelling two months prior to the 10th April. However, in the email of the 10th April the Landlord was only giving her one months’ notice to leave the dwelling as she the Landlord was going to move back into the dwelling herself. The Tenant stated that she also called Threshold in or around 10th April 2014 and they advised her that she was entitled to more time to vacate the dwelling
On the 11th April 2014 the Tenants subsequently wrote to the Landlord and stated that they needed more time to move out as they were having great difficulty in finding a new dwelling. On the 20th April 2014 the Landlord’s sister emailed the Tenants and said that the Landlord was willing to extend her date for moving out from the dwelling to the 12th July 2014.
The Tenant stated that they did find a suitable dwelling and moved out on the 28th May. She notifed the Landlord on the 10th May by email that she was able to move on the 28th May into their new dwelling.
The Tenant said that they did not accept the claim being made by the Landlord as to why portion of the deposit was retained by her. She did not accept that there was damage done to the dwelling above normal wear and tear and stated that they had taken photos as evidence. She justified this by stating that as they were living in the dwelling for four years there would be some normal wear and tear to the dwelling. She said the carpet was a light colour and showed any dirt easily. She said that she had kept a dog in the dwelling. She had told the landlord in 2010 about the dog and the agent also stated it was okay to keep the dog in the dwelling.
She referred to the photograph of the couch where it was allegedly torn at the rear . She stated that the couch had been moved from where it was when she had left the dwelling into another room and the tear was not there when she left the dwelling.
There were other photos produced by the landlord in respect of alleged damage. One photograph showed dirt on the skylight window. The Tenant stated in relation to this that it was impossible to reach up and clean it because it was up such a height that would necessitate the use of a long ladder to clean same. The Tenant accepted that they had painted two rooms in the dwelling. She did not ask for the Landlord’s consent but her husband was a professional painter and he had carried out a professional job in the painting of the rooms. She also stated that the reason the rooms were painted was there was a problem with mould in the dwelling and the paint kept the mould down in the rooms.
When asked by the Tribunal how often did the Landlord or her agent inspect the dwelling, she said approximately every year. She said that if there was ever a difficulty within the dwelling that she spoke to the Landlord who was living abroad and usually everything was fixed by her agent or sister. She stated that if the Landlord had not decided to increase the rent she would have stayed on in the dwelling. She also claimed the Landlord did not move back into the dwelling after they had vacated it.
She stated that she was looking for the return of the balance of her deposit in the sum of €600. She said that they only received the list of the Landlord’s reasons for withholding the deposit by letter dated the 3rd June 2014, and this was after they had vacated the dwelling. She said that she is now paying €1,500 in rent in her new dwelling, plus she had to pay another €1,500 deposit. She added that as they had not envisioned that they were going to leave the dwelling so soon she had to gather new rent and a deposit and the return of her full deposit would have been of great assistance to her .She had also submitted a quote for the painting that was carried out to the dwelling of €350.00. The Tenant stated that this quote was from her husband; as already stated he is a professional painter and she was looking for the payment of same.
Respondent Landlord’s Case
The Landlord’s representative Ms. Belard said that the carpet was brand new when the Tenants moved into the dwelling. She agreed with the Tenants that the Landlord had not moved back into the dwelling. She stated that the reason for this was because after the Tenants had left, the Landlord had put so much money into the dwelling to bring it back up to a liveable standard she could not afford to move back into the dwelling. She also stated that the Landlord had to take a loan out for the said works to the dwelling.
She went on to give further evidence that in relation to the skylight and the dirt on it which she claimed was evident from the photographs produced to the Tribunal, she stated that there was a pole to open up the sky light which enabled it to be cleaned when it is opened. She said the pole was never used as it was in the same position when the Tenants went into the dwelling as to when they left the dwelling.
She further stated that the whole dwelling not only had to be repainted but because the walls were covered first with a lining paper and then painted over, some of the lining paper which was torn had to be replaced and this necessitated the painting of the wall as a whole .
She accepted that the Landlord and agent were aware that there was a dog in the dwelling and they did not formally ask the Tenants to have the dog removed. While she was not at the dwelling when the Tenants vacated on either the 28th or 29th May 2014 she believed that the Tenants were never asked to make good any alleged damage to the dwelling after they left. She did say she was the person who had cleaned the Dwelling before the Tenants had taken up occupancy and the tear on the couch was not there as she had lifted out the couch to clean under it. She also gave evidence that the hoover did not work when the Tenants had vacated but she could not say how old it was. She said all the curtains were destroyed in the dwelling with stains. She also made a claim for chairs in the kitchen which had to be reupholstered. However, there were no photos of the damage pre or post the alleged re-upholstering. She said that the €600 from the deposit was retained initially for the cleaning of the dwelling and the carpets but that in fact with the total repainting of the dwelling and the replacement and fixing of items had cost an awful lot more than the €600.00 they had decided to retain from the deposit.
She also stated that the Landlord felt aggrieved that while the Tenants were given extra time up until the 12th July 2014 to move out of the dwelling they left early after giving the Landlord 2 weeks notice. The Landlord believed that she ought to have been entitled to a month’s notice from the Tenants before they left. In this regard Ms Belard referred in particular to Section 5(d) of the lease the Tenants had signed but which had expired on the 12th February 2014 which stated:
If the Tenancy hereby created should continue beyond the date hereinbefore stipulated it shall in the absence of a new Agreement be deemed to be tenancy determinable by a months’ notice in writing by either party.
She relied on this section of the tenancy agreement to claim that the Tenants did not give the Landlord proper notice. She believed that it was illegal for the Tenants to leave as they did. She also claimed that not all keys were handed back by the Tenants to the Landlord either on the 28th or the 29th May 2014 after the Tenants had vacated the dwelling, as a result of which the Landlord had to change all the locks in the dwelling.

6. Matters Agreed Between the Parties
1. The tenancy commenced on the 12th August 2009 and ceased on the 28th May 2014.
2. The Dwelling is known as 17 Warren Avenue, Carpenterstown, Dublin 15
3. A deposit of €1,100 was paid by the Tenants to the Landlord.
4. On vacating the dwelling the Tenants received the sum of €500 from her deposit of €1,100.00
5. The landlord still retains the sum of €600 from the deposit of the Tenants.
7. Findings and Reasons:
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 email from the Landlord to the first-named Appellant Tenant of the 10th April 2014 giving the Tenants one months notice to vacate the dwelling is not a proper or valid notice of termination under the act and was invalid. The Tribunal awards damages in the sum of €500.00 to the Tenants for the Landlord’s failure to validly terminate the tenancy of the dwelling

Reasons:
The notice of termination referred to is not in accordance with the provisions of Section 66 of the Act. In this case the tenancy was approximately 4 years and 8 months duration from 12th August 2009 and only one months’ notice was afforded to the Tenants. This is not a valid notice period to give the Appellant Tenants. In the case of this tenancy of the dwelling which was of more than four years duration, the proper notice period is 112 days. Furthermore, the notice did not comply with the provisions of sub-sections 62(f)(ii) and (g) of the Act in that it did not indicate that the Tenants had the whole of the 24 hours of the termination date to vacate possession of the dwelling, nor did it 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 PRTB, within 28 days from the date of receipt of the notice. The notice furthermore being served by e-mail did not meet the requirement that such notice must be in writing.
The reason given for terminating the tenancy was that the Landlord required the dwelling for her own use. Such notice must also contain a statement pursuant to Section 35 of the Act that, subject to the Tenant providing contact details within 28 days of the termination of the tenancy or dispute resolution in respect of if the person residing in the dwelling left pursuant to the Notice of Termination, a new tenancy would be offered to the Tenant. The notice did not meet this requirement. While the Tenants agreed to leave based on the emails that were sent to them by the Landlord and accepted the purported notice of termination that was given to them in the emails of the 10th April and the 20th April, the notification was not correct and was in contravention of the proper procedure under the Act.

7.2 Finding
The Tribunal also finds that the Tenants were not given any notice of or time within which to remedy any of the alleged damage to the dwelling above normal wear and tear that the Landlord claimed had occurred during the tenancy of the Tenants.
Reasons
Under Section 16(g) of the Act the Tenant is entitled to make good any damage he or she may have caused during the tenancy once notified by the Landlord of the damage. In this instance Ms Belard told the Tribunal in her evidence no such notification was given to the Tenant either before or after they had vacated the dwelling.
7.3 Finding:
The Tribunal finds that the Tenants were in breach of Section 16(f) of the Act with regard to their obligations not to cause damage to the dwelling over and above normal wear and tear. In this case the Tribunal finds that damage was carried out to the couch during the course of the tenancy by the Tenants over and above normal wear and tear and awards the sum of €100.00 to the Landlord in damages in respect thereof. The Tribunal also finds based on the evidence before it that the Tenants caused damage to the carpets and awards the sum of €200.00 for the cleaning of the carpets. The Landlord must accordingly return €300.00 of the unlawfully retained portion of the deposit of €600.00

Reasons:
The sum of €100.00 was awarded for damage to the couch, as the Tribunal accepted the evidence of the Landlord’s representative Ms Belard that she had cleaned the dwelling for the Landlord and the tear was not in the rear of the couch before the Tenants had taken up occupancy of the dwelling. The Tribunal also accepts the evidence of Ms Belard together with the photographs produced in evidence that the carpets were new when the Tenants took up occupancy of the dwelling. The Tribunal further accepts the evidence of Ms. Belard that because of the dog, damage was caused to the carpets.
The Tribunal does not award any further damages to the Landlord in respect of other alleged damage to the dwelling over and above normal wear and tear by the Tenants as alleged by Ms. Belard. While the Landlord claimed that the costs she had to expend on the dwelling after the Tenants had vacated far exceeded the €600.00 retained by her for damage done to the dwelling, which included repainting the dwelling and replacing certain items contained in the dwelling and the refurbishment of chairs in the kitchen, no conclusive evidence was produced before the Tribunal in respect of same.
.
8. Determination:
Tribunal Reference TR1114-000914
In the matter of Alice Baranauskiene, Raimundas Baranauskas (Tenant) and Sonia Kiernan (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
The Notices of Terminations served on the 10th April and 20th April 2014 by the Respondent Landlord on the Appellant Tenants in respect of the tenancy of the dwelling at 17 Warren Avenue, Carpenterstown, Dublin 15 are invalid. The Respondent Landlord shall pay the sum of €800.00 to the Tenants being the return of €300.00 of the unlawfully held portion of the deposit in the sum of €600.00 together with the sum of €500.00 in damages for breach of the Landlord’s obligations under the Act, the balance of the unlawfully held deposit of €300.00 having being retained by the Landlord in respect of damages caused by the Tenants to the dwelling over and above normal wear and tear.

The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 08 October 2015.
Signed:
Orla Coyne
Orla Coyne Chairperson
For and on behalf of the Tribunal.

Cassidy v Watts

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001602 / Case Ref No: 1115-22722
Appellant Tenant: Paula Cassidy, Darren Rafferty
Respondent Landlord: DeborahWatts, Keith Daly, GavinWatts
Address of Rented Dwelling: 11 Fortunestown Close, Tallaght , Dublin 24,
D24P3V9
Tribunal: Dervla Quinn (Chairperson)
John Keane, Kevin Baneham
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 22 March 2016 at 10:30
Attendees: Paula Cassidy (Appellant Tenant)
Noma Mlotshwa (Resondent Landlord’s
Representative)
Jenny O’Leary (Respondent Landlord’s
representative)
In Attendance: Stenographer
1. Background:
On 27 November 2015 the Landlord made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred
to an Adjudication which took place on 19 Jaunary 2016. The Adjudicator determined
that:
1. The Notice of Termination served on 26.03.15, by the Applicants on the
Respondents, in respect of the tenancy of the dwelling at 11 Fortunestown Close,
Tallaght, Dublin 24, is valid:
2. The Respondent Tenants and all persons residing in the above dwelling, shall
vacate and give up possession of the above dwelling within 28 days of the date of
issue of the Order;
3. The Respondent Tenant shall pay the total sum of €2,698.29 to the Applicant,
in 10 equal installments at the rate of €260 per calendar month,on the 28th day of
each month, followed by one further instalment of €98.29 in the immediately
succeeding month commencing the next month after the issue of the Order. This sum
represents rent arrears of €2,598.29 and damages of €100 for breach of obligations
to pay rent as it falls due, in respect of the tenancy of the above dwelling;
4. The enforcement of the Order for such payment will be deferred and the total
sum owing will be reduced by the number of monthly installments of €260 made to
the Applicant on each due date until the sum of €2,698.29 has been paid in full;
5. For the avoidance of doubt any default in the payment of the monthly
installments of €260 shall act to cancel any further deferral and the balance due at
the date of default shall immediately become due and owing to the Applicants.
6. The Respondent Tenants shall also pay any further rent outstanding from 19.01.15
to the Applicants at the rate of €900 per month or proportionate 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
they vacate the above dwelling.
7. The Landlord shall refund the entire of the security deposit of €1,000 to the
Respondent Tenants, upon the Respondent Tenants vacating and giving up
possession of the above dwelling, less any amounts properly withheld in accordance
with the provisions of the Act.
Subsequently the following appeal was received from the Tenant on 15 February 2016.
The grounds of the appeal is Invalid Notice of termination. The appeal was approved by
the Board on 16 February 2016.
The PRTB constituted a Tenancy Tribunal and appointed Kevin Baneham, John Keane,
Dervla Quinn 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 February 2016 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 22 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:
The Tenant had a number of receipts for works carried out by the Tenants to the Dwelling
which receipts she had given to the Landlords. The Receiver Landlords’ agents had
brought these to the Tribunal but had not submitted copies in advance of the hearing.
The Tenant was asked did she object and she confirmed that she agreed that the
Tribunal should have sight of these receipts. The Receiver Landlords’ agents had not
brought copies of the invoices so the Tribunal retained the receipts and informed the
Receiver Landlords’ agent that they could request the receipts back from the PRTB
offices after the hearing
4. Procedure:
The Chairperson asked the Parties to identify themselves and to identify the capacity in
which they were attending the Tribunal. She asked the Parties to confirm that they had
received the relevant papers from the PRTB and that they had received the PRTB
document entitled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the party who referred the dispute to the Tribunal, the Appellant Tenant would be invited
to present her case first; that there would be an opportunity for cross-examination by the
Respondent Landlords; that the Respondent Landlords would then be invited to present
their case, 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 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:
The Tenant confirmed to the Tribunal that she was representing both herself and Darren
Rafferty. She stated that they had appealed the adjudicator’s decision as they were afraid
of being made homeless. When questioned by the Tribunal on the sum claimed by the
Receiver Landlords as being due for arrears of rent the Tenant stated that they had paid
for a number of repairs to the Dwelling since the letting started with the Receiver
Landlords. She told the Tribunal that she commenced residing in the dwelling
approximately seven years before the Tribunal hearing date. The Tribunal asked what
value the Tenant put on these repairs. As she had given the Receiver Landlords’ agent
the receipts for the monies spent the Tenant was not able to answer this question. The
Receiver Landlords’ agent had the receipts with them and it was agreed that these should
be submitted to the Tribunal.
The Tenant stated that they had informed the Receiver Landlords on a number of
occasions of problems in relation to the Dwelling. As the Receiver Landlords had not
dealt with the problems the Tenants had fixed the problems themselves. In particular,
she referred to a problem with the side entrance gate, the condition of the broken
banisters on the stairs which was dangerous and required fixing as a matter of urgency,
carpets that had to be replaced and a ceiling that collapsed in the kitchen as a result of a
leak and had to be repaired by the Tenants. The Tenant stated that she told the Receiver
Landlord’s representative about the problem with the ceiling in the kitchen.
The Tenant stated that there had been a rat infestation, there were problems with the
drains and the Tenants had paid Dyno rod €260 to remedy the problem. The Receiver
Landlords had arranged for a survey to be carried out on the condition of the Dwelling.
This survey had not been submitted to the Tribunal. The Receiver Landlords’ agents did
not have a copy of the survey with them. The Tribunal noted that clause 3 (g) of the
tenancy agreement entered into between the Receiver Landlords and the Tenants dated
13 August 2013 fixed the Tenants with responsibility for the maintaining the interior of the
Dwelling. The Receiver Landlords’ agent stated that they had found it difficult to make
contact with the Tenants to arrange the carrying out of repairs. When asked by the
Tribunal the Receiver Landlords’ agents confirmed that they had not at any stage written
to the Tenants seeking access for the purpose of carrying out repairs.
The parties confirmed that the rent payable was €900 per month. The sum of €769 was
paid by rent supplement with the balance paid by the Tenants. The Tenant
acknowledged that arrears had accumulated. She stated that she paid rent of €900 to the
original landlord for June 2013 before the she commenced making payments to the
Receiver Landlords and this amount should not be included in the Receiver Landlords’
calculations The Receiver Landlords’ agents stated that the sum of €4,732.70 was due
for arrears of rent to date. The Tenant reviewed the Receiver Landlords’ agent’s written
statement of arrears and agreed that the Tribunal be shown the statement. The Tribunal
questioned the Receiver Landlords’ agent on the sums set out in the statement. The
Receiver Landlords’ agent agreed with the Tribunal that there appeared to be an error in
the calculations set out therein and withdrew the up dated rent statement.
The Receiver Landlords’ agent stated that the Receiver Landlords intended placing the
property for sale as soon as they had vacant possession. At this point they had not
instructed selling agents. The Tribunal noted that the notice of termination based on the
Landlords’ intention to sell dated 26 March 2015 was unsigned. The Receiver Landlords’
agent responded that generally all letters were signed but that they did not have a copy of
the signed notice with them. The Receiver Landlords’ Agent accepted that the Receiver
Landlords were responsible for carrying out repairs. However, she told the Tribunal that
she was unable to contact the Tenants regarding the repairs on a number of occasions.
The Receiver Landlords’ Agent said she was not aware of the problem with the ceiling in
the kitchen. She said that she forwarded the receipts to the Receiver Landlords in 2014
but never received authority to offset the amounts claimed by the Tenants against the
rent.
The Tenant then made a short closing statement. She needed more time to find
alternative accommodation. She is 4 months pregnant, her daughter is sitting her leaving
certificate and the thought of being made homeless in unbearable.
The Receiver Landlords’ agents did not make a closing statement.
6. Matters Agreed Between the Parties
The Dwelling is 11 Fortunestown Close Tallaght Dublin 24.
The rent was €900 per month.
The Tenants are still in occupation .
7. Findings and Reasons:
7.1 Finding: The two Notices of Termination served on the Tenants by the Landlord are
invalid.
Reason: Section 62(1)(b) of the Act states that for a notice of termination to be valid it
must be signed by the landlord or his authorised agent. The copy of the notice of
termination submitted by the Receiver Landlords to the PRTB dated 26 March 2015 was
unsigned. The Receiver Landlord’s Agent and representative were questioned by the
Tribunal and were not able to confirm having seen a signed copy of the notice. Their
response to the Tribunal that all notices served by their office would have been signed is
not accepted as adequate evidence by the Tribunal
Reason: The copy of the notice of termination dated 02 November 15 signed by Noma
Mlotshwa based on arrears of rent being due failed to provide the correct notice period.
The notice of termination was dated 02 November 2015 to come into effect on 29
November 2015 being 27 days after the date of the notice, not the 28 days required
pursuant to Section 67 (2)(b) of the Act. Section 61 (1) of the Act provides as follows: “A
reference in this Part to a particular period of notice to be given by the notice of
termination concerned is a reference to such a period that begins on the day immediately
following the date of service of the notice”.
7.2 Finding: The Tenants owe the Landlords arrears of rent of €1,669 up to the date of
the hearing being 22 March 2016.
Reason: The Receiver Landlords’ agent referred to a rental statement for the period from
1 June 2013 to 30 November 2015, a total period of 30 months. Calculated at the rate of
€900 per month, the amount of rent due over this period is €27,000(30 months x €900).
The rental statement records rent paid of €24,431. This leaves rent arrears of €2,569
being €27,000 less €24,431 over the period from 1 June 2013 to 30 November 2015. The
Receiver Landlords’ agent stated that the rent arrears at the date of the hearing were
€4,732.70. The Receiver Landlords’ agent produced a more update rental statement at
the hearing which she subsequently withdrew as she stated that it was not accurate. The
Tribunal finds that there was insufficient documentary evidence in relation to the arrears
of rent claimed for the period from the 30 November 2015 to the date of the hearing. The
Tribunal accepts the Appellant Tenant’s evidence that the Tenants paid €900 to her
Landlord to cover the month of June 2013 before she was notified of the appointment of
the Receiver Landlords and awards the sum of €1,669 (€2,569 less €900) to cover the
period from the 1 June 2013 up to the date of the hearing.
7.3 Finding: The Receiver Landlords are in breach of their duties as set out in section 12
(1)(b) and 12(1)(g) of the Act regarding standard and maintenance of the Dwelling.
Reasons: The Receiver Landlords, on taking over control of the Dwelling on foot of a
Deed of Appointment dated 27 May 2013, entered into a rental agreement with the
Tenant dated 13 August 2013. The Receiver Landlords, by entering into a lease
agreement with the Tenants in which they are the person for the time being entitled to
receive the rent paid in respect of the Dwelling, are responsible, pursuant to section 12
(1)(b) of the Act, for repairs to the structure and to the interior of the Dwelling. The
Tenants are entitled to be reimbursed for the repairs that had to be carried out to prevent
a significant reduction in their living environment, for example to the stairs and the kitchen
roof. Pursuant to breaches of section 12(1)(g) of the Act, the Tenants are entitled to be
refunded the sum of €1,393.46 spent by them in carrying out repairs which sums are
supported by the following receipts submitted to the Tribunal:
Carpets €163.11
Waste Recycling Skip €244.99
Door hinges €24. 50
B&Q hardware goods €960.86 being 1/3 of the sum of €2,882.58 submitted
as B&Q receipts – the receipts were made up of a number of items such as mirrors and
spotlights not all of which could be attributable to repair works. The Tribunal finds that 1/3
of the sums spent should be reimbursed to the Tenant.
The Landlords commissioned a survey on the Dwelling. The survey was not submitted to
the Tribunal but the Receiver Landlords’ agent acknowledged that the survey stated that
repairs needed to be carried out. The Receiver Landlords’ agent stated that these works
could not be carried out until they were given access to the Dwelling. It was their
evidence that despite repeated efforts to make contact by phone they had been unable to
arrange the necessary access to the Dwelling for the repairs to be done. This evidence
was not accepted by the Tenant. The Receiver Landlords’ agent confirmed that they had
not at any stage written to the Tenants seeking access. A landlord’s duty to carry out
repairs to the structure and the interior of the dwelling cannot be discharged without the
necessary access but a landlord must make all reasonable efforts to gain access and
reasonable efforts would, in the view of the tribunal, include efforts to contact a tenant in
writing in the event that they could not make contact with the tenant by phone.
8. Determination:
Tribunal Reference TR0216-001602
In the matter of Paula Cassidy, Darren Rafferty (Tenant) and Deborah Watts, Keith
Daly, Gavin Watts (Landlord) the Tribunal in accordance with section 108(1) of the
Residential Tenancies Act 2004, determines that:
The Notices of Termination served on 26 March 2015 and 02 November 2015 by the
Respondent Landlords on the Appellant Tenants in respect of the tenancy of the
dwelling at 11 Fortunestown Close Tallaght Dublin 24 are invalid due to the failure by
the Respondent Landlords to comply with the requirements of section 62 (1)(b) and
Section 67 (2)(b) of the Act.
The Respondent Landlords are in breach of their duty regarding the standard and
maintenance of the Dwelling and shall refund the Appellant Tenants the sum of
€1,393.46 expended by the Appellant Tenants over the course of the letting for repairs
to the Dwelling.
The Appellant Tenants Paula Cassidy and Darren Rafferty are in breach of their
obligations to pay rent pursuant to section 16 (a)(i) of the Act and shall pay the
Respondent Landlords Kieran Wallace and Robert McCarthy the sum of €1,669 for
arrears of rent due. This sum shall be reduced by €1,393.46 being the refund owing to
the Appellant Tenants for repairs carried out by them to the Dwelling leaving the sum
due to the Respondent Landlords of €275.54 which sum will be paid by the Appellant
Tenants to the Respondent Landlords within 28 days of the date of receipt of the
Determination Order.
The Appellant Tenants shall also pay any further rent outstanding from 21 March 16 to
the Respondent Receiver Landlords at the rate of €900 per month or proportionate
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 they vacate the above dwelling.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 31 March 2016.
Signed:
Dervla Quinn Chairperson
For and on behalf of the Tribunal.

Castletown v Moore

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001594 / Case Ref No: 1115-22525
Appellant Landlord: Castletown Foundation Ltd
Respondent Tenant: Sarah Moore
Address of Rented Dwelling: Blackmores, Castletown, Owning, Piltown, via
Carrick on Suir , Kilkenny,
Tribunal: Aidan Brennan (Chairperson)
Suzy Quirke, Elizabeth Maguire
Venue: Room G.02, Department of the Environment,
Newtown Road, Wexford
Date & time of Hearing: 05 April 2016 at 2:30
Attendees: John Shelley (Appellant Landlord’s agent)
Sandra Purcell (Appellant Landlord’s agent)
Patrick Moore (Respondent Tenant)
Sarah Moore (Respondent Tenant)
In Attendance: RTB appointed stenographer
1. Background:
On 19 November 2015 the Tenant made an application to the Residential Tenancies
Board (RTB) pursuant to Section 76 of the Residential Tenancies Act 2004 (the Act). The
matter was referred to an Adjudication which took place on 14 January 2016. The
Adjudicator determined that:
1. The Respondent Landlord shall pay the sum of €3,260 to the Applicant Tenant,
within 14 days of the date of issue of the Order, being comprised of the sum of
€2,675, relating to damage to a carpet belonging to the applicants, damages of €300
for breach of landlord obligations in relation to standards and maintenance of the
dwelling, €100 for breach of obligations for failing to provide a rent book or written
lease and a refund of €185 in respect of overpayments of rent in respect of the
tenancy of the dwelling at Blackmores, Castletown, Owning, Piltown, County
Kilkenny.
2. The claim in relation to rent above market value is upheld. The rental increase of
18th of November 2015 did not take effect and the rent for the property remains at
€500 per month.
An appeal to the Tribunal against the adjudicator’s determination was received from the
landlord on 11 February 2016. The grounds of the appeal were Rent more than market
rate, Rent arrears, and Other.The appeal was approved by the Board of the RTB on 12
February 2016 and the dispute was referred to the Tribunal.
The RTB constituted a Tenancy Tribunal and appointed Aidan Brennan, Suzy Quirke and
Elizabeth Maguire as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Aidan Brennan to be the chairperson of the Tribunal (the Chairperson).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 05 April 2016 the Tribunal convened a hearing at Room G.02, Department of the
Environment, Newtown Road, Wexford.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
na
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the RTB in relation to the case and that
they had received the RTB document titled “Tribunal Procedures”.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the Appellant’s representative 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 Appellants representative. If anything new was
raised in the Respondent Tenants evidence the Appellant Landlord would be afforded an
opportunity to respond. The Chairperson explained that following this, both parties would
be given an opportunity to make a final submission.
The Chairperson said that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and he reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing, the Board of
the RTB would make a Determination Order which would be issued to the parties and
could be appealed to the High Court on a point of law only.
The parties intending to give evidence were sworn in.
5. Submissions of the Parties:
Appellant Landlord:
Evidence of Sandra Purcell (landlord’s agent)
The landlord’s agent accepted that an amount of rent in the sum of €185, the receipt of
which was previously in dispute, was in fact received by the landlord.
The landlord’s agent gave evidence concerning the rent review outlining that the rent had
been static for several years due to the fact that the tenants had undertaken various
works at the commencement of the tenancy and had supplied carpeting and various
fittings. It was accepted that, notwithstanding the reduced rent, the carpet supplied by the
tenants would remain the property of the tenants. The landlord’s agent said that the rent
was reviewed in June 2014 and increased to €500 per month and further stated that the
landlord considered that sum as being less than the market rent at that time particularly
as the landlord had spent approximately €27,000.00 on repairs and improvements to the
dwelling up to 2014. In support the figure of rent set by the rent review notice of 18
November 2015, to take effect on 1 January 2016 at a rate of €600 per month she said
that she rents out a comparable property in the town at a rent of €650 per month and
referred to the valuation reports that stated that the rental market value of the dwelling
under dispute was €650 per month. She accepted that while there was a problem with
dampness it was not in any way as extensive as to render the property structurally
unsound or to ground a claim for failure to maintain the property in good condition.
It was accepted that water damage was caused to the carpet due to a burst pipe in
December 2010 and that the tenants may have been incorrectly given to understand that
the landlord would deal with the damage through the landlords insurance. The landlord
was prepared to replace the carpet at this time on a like for like basis at a cost of €990
due to a “promotion sale offer” and at a cost of €1345 on an “after sale” price and on the
basis that the replaced carpet would become the property of the tenants.
It was accepted that there was a delay in issuing a further lease to the tenants in 2015,
but it was contended that the earlier leases were sufficient to comply with the Rent Book
Regulations.
Evidence of John Shelley Landlord’s agent
The landlord’s agent gave evidence that he visited the dwelling about three years ago
and he was shown the carpet in the hallway which he recollected looked quite good and
that any visible damage was caused by leaking pot plants. He said that the downstairs
floors are concrete slab construction.
Respondent Tenants:
Evidence of Sarah Moore (tenant)
The tenant stated that a pipe had burst in the dwelling on or about the 21st of December
2010. This had caused extensive water damage to carpet that belonged to the tenants.
The tenants’ were insured and they were going to claim compensation for this damage
under their insurance. They were given to understand that the landlord would cover the
damage to the carpet and would reimburse the tenants but they were never reimbursed
for the damage to the carpet. The tenants submitted a quote for replacing the carpet
which came to €2,675 and a further quote for €5,010 when they became aware that the
first quote did not cover the full area of carpet which was damaged. The tenant also
submitted photographs of the damage to the carpet and said that the carpet was
threadbare in parts due to damage caused by the leak, and by workmen employed by the
landlord to effect chimney repairs and also due to damp in the house. They landlord’s
offer of replacement carpet was rejected by the tenant because she had already obtained
replacement carpet. No evidence was forthcoming in relation to the cost of the carpet in
2010, which carpet is in situ, albeit worn and damaged, nor for that matter was there any
evidence submitted in respect of the replacement carpet obtained by the tenant.
In support of the tenants claim that the rent of €600 per month was in excess of market
value, the tenant said that most of the items in the house, except showers, bath, and
some kitchen items belonged to her and been supplied by her. She also said that the
property is damp and as such contends that the rent increase was not justified. She said
that the house was not of a similar standard to other houses in the location. The applicant
contested the valuation report and said that the agent for the valuation company had
spent a very short time at the property and had stated that in order to carry out a proper
valuation he would have to take out all the belongings of the tenant and assess what
remained at that stage. She said that the repairs of €27,000 incurred by the landlord
covered major items such as structural repairs to the chimneys and the sewerage system.
She has had to replace several electric shower units and various kettles and irons due to
lime content in the water before the landlord installed a water softener system.
On the subject of standards and maintenance of the dwelling, the tenant said that there
were issues with damp and these were never properly addressed. She referred to the
photographs submitted in evidence to show kitchen presses which were mouldy. She said
that there were certain issues with damp in the kitchen and that she had made inquiries in
relation to resolving these matters and had been told that quite extensive work was
required involving “French drains”.
The tenant also claimed that there was a breach of landlord obligations in that they had
not been provided with a lease or rent book for a period and that the landlord had sought
to collect rent arrears where none had been due.
Evidence of Patrick Moore (tenant)
The tenant gave evidence relating to the water damage to the carpet in the hallway and
the sitting-room in 2010; the mistaken information previously given to the tenants by the
landlord’s agent concerning insurance recovery; the further damage to the carpet caused
by workmen employed by the landlord and a general description of the state of the
carpets at the present time and how damp patches occur wherever a pot plant is
positioned.
6. Matters Agreed Between the Parties
The tenancy commenced on 7 June 2010.
The current rent being paid is €500 per month.
The tenants are Patrick and Sarah Moore.
A Notice of termination was not issued by the landlord.
An overpayment of rent by the Tenants in the sum of €185 is not disputed.
The Dispute, in respect €450 rent allegedly paid in January 2012 the receipt of which was
denied by the Landlord, was withdrawn by agreement of the parties.
7. Findings and Reasons:
7. Finding:
Having considered the documentation before it and having considered the evidence
presented by the parties, the Tribunal finds that:
1. The monthly rent of €600.00 set by the rent review notice of 18 November 2015, to
take effect on 1 January 2016 for the tenancy of the dwelling was greater than the market
rent for that tenancy at that time and consequently did not comply with section 19(1) of
the Act.
2. The monthly rent in respect of the tenancy of the dwelling on the review date of 18
November 2015 was €550.00.
Reasons:
The appropriate date for setting the market rent is 18 November 2015 being the date on
which the rent review notice was served.
The previous rent review notice was served on 1 June 2014 increasing the rent to €500
with effect from July 2015. The rent for the previous year was €450 per month.
Section 19 of the Act provides that in setting, at any particular time, the rent under a
tenancy, an amount of rent shall not be provided for that is greater than the amount of the
market rent for that tenancy at that time.
Section 22 of the Act requires that at least 28 days before the date from which the new
rent is to have effect, a notice in writing is served by the landlord on the tenant stating the
amount of the new rent and the date from which it is to have effect.
The Tribunal is satisfied the correct period of notice was given to the tenants in relation to
the rent review by means of the letter dated 18 November 2015, which provided the rent
would be increased to €600.00 per month with effect from 1 January 2016.
Market rent is defined in section 24(1) of the Act as follows: “market rent”, in relation to
the tenancy of a dwelling, means the rent which a willing tenant not already in occupation
would give and a willing landlord would take for the dwelling, in each case on the basis of
vacant possession being given, and having regard to:
(a) the other terms of the tenancy, and
(b) the letting values of dwellings of a similar size, type and character to the dwelling and
situated in a comparable area to that in which it is situated.
Section 78 (1) (c) of the Act provides for the making of a complaint to the RTB as regards
the time at which a rent review should take place or the amount of rent that should be
determined on foot of that review.
Neither party made any submissions that the terms of the tenancy were of significance in
determining the market rent at the particular time, notwithstanding that the rent set for
earlier years was influenced by the condition of the dwelling and the various works that
the tenants agreed to carry out. The landlord contended that the rent set for earlier
periods up to and including 2014 was less than the market rate and the rent set at €600
per month from 1January 2016 merely brought the amount up to market rate.
The tenants did not submit evidence of any properties to the Tribunal to show the letting
values of dwellings of a similar size, type and character to the dwelling situate in a
comparable area but rather referred to the property details submitted by the landlord and
said that these were not comparable with the dwelling which is subject to the tenancy.
In the circumstances, the Tribunal is satisfied that the increased rent claimed by the
landlord of €600.00 per month, an increase of 20% over the previous rent, is greater than
the amount of the market rent for that tenancy at that time and therefore is not in
compliance with section 19 of the Act.
Where the Tribunal finds that an amount of rent is not in compliance with section 19 of the
Act it must, in accordance with section 115 (2) (b) of the Act , give an indication of what
amount in its opinion would comply with section 19.
Having considered all the evidence before it, including the documents on the case file, the
Tribunal is of the opinion that the monthly rent in respect of the tenancy of the dwelling on
the review date of 18 November 2015 was €550.00. This represents an increase of 10%
over the rent set in the review letter of 01 June 2014 for the previous year. This increase
approximates with the annual increase noted in the RTB index for quarter 4 of 2015 for
the rental increase of 9.9% outside the Dublin area. Notwithstanding that there had not
been a rent increase for this tenancy for a period of 18 months, the Tribunal is satisfied
that the rent of €550.00 is the market rent having regard to the fact that the RTB index is
indicative; based on national averages and cannot take fully into account the individual
character or location of the dwelling which, in this case, is part furnished by the tenants
and has an admitted problem with dampness.
7.1 Finding:
The Tribunal finds in relation to the claim regarding the carpet that damage was caused
by a water leak in December 2010 and further damage was caused subsequently by
workmen employed by the landlord to effect repairs at the dwelling and awards damages
to the tenants in the sum of €500.00.
Reason:
The carpet was purchased by the tenants and it is accepted by the landlord that
notwithstanding a reduction in the monthly rent in consideration of the tenant supplying
the carpet that the carpet would remain the property of the tenants.
While documentation, by way of quotes and estimates for replacement, was provided by
the parties no evidence was provided by the tenants as to the cost of the carpet in 2010.
The tenants rejected an offer by the landlord to replace the carpet at a “sale price” of
€993 or an “after sale price” of €1345; the replaced carpet to become the property of the
tenants. The landlord’s offer was rejected by the tenants on the basis that they had
obtained, but not fitted, replacement carpet. No indication was given to the Tribunal as to
the cost or value of the replacement carpet. In assessing the damages to the carpet the
Tribunal took account of the fact that an unspecified reduction in rent had been agreed at
the commencement of the tenancy in consideration of the tenants supplying, inter alia,
the carpet and that the carpet is still in place albeit in a worn or damaged condition This
un-quantified benefit by way of rent reduction had endured from 2010 up to 2014 and in
effect the carpet was part paid for by the landlord. Neither party could assist the Tribunal
in assessing the amount of rent foregone.
7.2 Finding:
The Tribunal finds that the landlord is in breach of obligations under the standards for
houses prescribed under the Minimum Standards as set out in the Housing (Standards
for Rented Houses) Regulations 2008 and the Housing (Standards for Rented Houses)
(Amendment) Regulations 2009 and awards damages to the tenants of €300.00.
Reason:
The landlord accepted that the kitchen is damp but contends that it is a question of
degree as to the causes between water ingress, rising damp if any, and condensation
caused by human occupation. The Regulations define a proper state of structural repair
as meaning sound, internally and externally, with roof, roofing tiles
and slates, windows, floors, ceilings, walls, stairs, doors, skirting boards, fascia, tiles on
any floor, ceiling and wall, gutters, down pipes, fittings, furnishings, gardens and common
areas maintained in good condition and repair and not defective due to dampness or
otherwise.
It appears to the Tribunal that on the balance of probability remedial work will have to be
undertaken by the landlord to improve the situation insofar as dampness in the dwelling
and particularly in the kitchen is concerned.
Finding 7.3
The Tribunal finds that the landlord is in breach of the (Housing (Rent Books)
Regulations, 1993) and awards damages to the tenants in the sum of €100.
Reason:
The rent book regulations provide that the regulations may be complied with by
documentation other than a rent book providing that the other documentation serves the
same purpose as a rent book. No such documentation was provided in this case that
would meet the requirements of Article 5 in the regulations which provide that:
where payment is made otherwise than in accordance with paragraph ( a )
(handed direct to the landlord) of this article, the landlord shall, not more than 3 months
after receipt, either
(i) record in the rent book the amount, purpose and date of the payment and
the period to which it relates, or
(ii) provide the tenant with a written statement of the amount, purpose and
date of the payment, ……
The Tribunal is of the opinion that non compliance with the regulations added to the
difficulties between the parties in resolving the issue of alleged rent arrears.
Finding 7.3The Tribunal finds that the tenants have overpaid rent in the sum of €185.
Reason:
This is agreed by the landlord.
8. Determination:
Tribunal Reference TR0216-001594
In the matter of Castletown Foundation Ltd (Landlord) and Sarah Moore (Tenant)
the Tribunal in accordance with section 108(1) of the Residential Tenancies Act
2004, determines that:
1. The monthly rent of €600 set by the rent review notice dated 18 November
2015, to take effect from 1 January 2016 for the tenancy of the dwelling at
Blackmores, Castletown, Owning, Piltown, (via Carrick on Suir), Co. Kilkenny was
greater than the market rent for that tenancy at that time and consequently did not
comply with section 19(1) of the Residential Tenancies Act, 2004.
2. The market rent in respect of the tenancy of the above mentioned dwelling
was €550.00 per month on 18 November 2015.
3. The Respondent Tenants shall pay rent in the sum of €550.00 per month to
the Appellant Landlord, in respect of the tenancy of the above mentioned dwelling,
from 1 January 2016, unless lawfully varied, together with any other charges or taxes
set out in the tenancy agreement.
4. The Appellant Landlord shall pay the sum of €1085.00 to the Respondent
Tenants, within 14 days of the date of issue of the Order, being the sum of €500.00
relating to damage to carpet belonging to the Tenants; damages of €300.00 for breach
of Landlord obligations in relation to standards and maintenance of the dwelling;
€100.00 for breach of the Housing (Rent Books) Regulations, 1993 and a refund of
€185.00 overpayment of rent in respect of the tenancy of the above mentioned
dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
22 April 2016.
Signed:
Aidan Brennan Chairperson
For and on behalf of the Tribunal.

Charleton v Keenan

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0116-001543 / Case Ref No: 1115-22238
Appellant Landlord: Luke Charleton, Valerie McNamara, Frank
McNamara
Respondent Tenant: Hazel Keenan
Address of Rented Dwelling: 1 Saint Patricks Terrace, Greenmount , Cork,
T12HDH2
Tribunal: Eoin Byrne (Chairperson)
Vincent P. Martin, Helen-Claire O’Hanlon
Venue: Committee Room 1, Cork City Council, City Hall,
Anglesea Street, Cork.
Date & time of Hearing: 26 February 2016 at 2:30
Attendees: Shane Murphy (EY, for the Appellant Landlords),
Eoin Kenrick (EY, for the Appellant Landlords).
In Attendance: PRTB appointed stenographers
1. Background:
On the 9th November 2016, the Landlords 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 the 7th December 2016. The Adjudicator
determined that:
1. The Applicant Landlord’s application, regarding rent arrears and overholding by
the Respondent Tenant, in respect of the tenancy of the dwelling at 1 Saint Patrick’s
Terrace, Greemmount, Cork, is not upheld.
2. The Notice of Termination served on 14 May 15 by the Applicant Landlord on the
Respondent Tenant, in respect of the tenancy of the above dwelling, is invalid.
Subsequently a valid appeal was received from the Landlords by the PRTB on the 6th
January 2016. The grounds of the appeal were breach of tenant obligations, overholding
and rent arrears. The Board, at its meeting on the 12th January 2016, approved the
referral to a Tenancy Tribunal of the appeal. The PRTB constituted a Tenancy Tribunal
and appointed Eoin Byrne, Vincent P. Martin and Helen-Claire O’Hanlon 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 29th January, 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 26th
February, 2016, the Tribunal convened a hearing at 2:30pm at Committee Room 1, Cork
City Hall, Cork.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
There was no further documentation submitted at hearing.
4. Procedure:
The Respondent Tenant was not present at the time set for the commencement of the
hearing. Having waited a period of time to see if she would attend, the Tribunal
commenced the hearing in her absence.
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 and
that the party who appealed (the Appellants) would be invited to present their case. The
Chairperson indicated that the Tribunal members may ask questions during the hearing
and asked the parties to abide by the directions of the Tribunal. The Chairperson
explained that following their evidence, the Appellants 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. The parties were then duly sworn.
5. Submissions of the Parties:
Appellant Landlords’ Case:
The Appellant Landlords’ case was for rent arrears and overholding. In respect of the
amount of the monthly rent, the representatives at hearing advised the Tribunal that the
Respondent Tenant had informed the Receiver’s agent during a visit to the dwelling in
January, 2015 that the monthly rent was €759.63. They also confirmed to the Tribunal
that the Respondent Tenant remains in occupation of the dwelling. The representatives
stated that the claim for rent was limited to rent arising from the 1st February, 2015, as it
was possible rent prior to that date had been paid to the previous landlord. However, they
asserted that the Respondent Tenant had been advised in January, 2015 that rent was
now due to the Receiver and that none had been received at any stage by the Receiver.
They stated that the Respondent Tenant was initially cooperative and allowed access for
the purposes of viewings related to the sale of the dwelling. However, they stated that
after five viewings, the Respondent Tenant became uncooperative and refused to
communicate further with them. They indicated that the initial proposal was for the sale of
the dwelling with the Respondent Tenant in occupation.
In respect of the notices served, the representatives at hearing confirmed they had been
served by ordinary post on the 15th April and the 14th May. They stated that, at this
stage, the orders sought were for vacant possession and for the payment of the arrears.
Respondent Tenant’s Case:
The Respondent Tenant was not present and no documentation or other evidence was
submitted by her.
6. Matters Agreed Between the Parties
In the absence of the Respondent Tenant, it was not possible to agree any 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 thereof, are set out
hereunder.
Finding 1: The Tribunal find that the notice of termination served by the Appellant
Landlords on the Respondent Tenant on the 14th May, 2015, was valid, and that the
Respondent Tenant should vacate the dwelling within 28 days of the date of issue of the
Order of the Board.
Reasons: The Tribunal is satisfied that the Respondent Tenant was in arrears of rent prior
to the service of the notice of termination and prior to the giving of the relevant warnings.
From the evidence given at hearing, it is clear that the Respondent Tenant was advised
on the 12th January, 2015, that rent was to be paid to the receiver. It is also clear that she
was warned, over the following five Mondays, into February, 2015, that if rent was not
paid, a fourteen-day warning letter would be issued to her, having regard to the
documentation submitted from the agent and the absence of any evidence from the
Respondent Tenant such as would contradict this. Accordingly, the Tribunal is satisfied
that the Appellant Landlords complied with the requirements of section 34 of the Act in
this respect and that the Respondent Tenant was warned that her tenancy could be
terminated, given that she was warned after falling into arrears on the 1st February, 2015.
Further, the Tribunal is satisfied that the warning letter of the 15th April, 2015, complied
with section 67(3) of the Act and more than fourteen days elapsed after receipt of this
letter before the service of the notice of termination. From the evidence given at hearing,
the Tribunal is satisfied all notices were served by ordinary post to the address in
question, and that this was in accordance with section 6 of the Act, in particular where no
evidence has been submitted by the Respondent Tenant such as could contradict this
finding. Bearing all of that in mind, the Tribunal is satisfied that the Appellant Landlords
were entitled to serve the notice of termination that was served on the 14th May, 2015,
having complied with the relevant warning provisions of the Act and the Tribunal is further
satisfied that the notice was served in accordance with the Act.
While the notice in question only provides 27 days’ notice, not the 28 days required by
section 67 of the Act, the Tribunal is satisfied that this does not, of itself, prejudice the
notice of termination or make the notice invalid, in circumstances where the Appellant
Landlords were clearly entitled to serve the notice, where the Respondent Tenant was in
significant rent arrears, and where the Respondent Tenant has not vacated the dwelling
or otherwise been prejudiced by receiving only 27 days’ notice and not 28 days’ notice. In
those circumstances, the Tribunal is satisfied that it is appropriate to exercise its
discretion under section 64A of the Act, as inserted by section 30 of the Residential
Tenancies (Amendment) Act 2015, and determine that the slip in providing only 27 days’
notice shall not render the notice invalid, where it is clear there was an intention to
provide the relevant period of notice of 28 days. The relevant wording of section 64A
makes it clear that the relevant date in determining whether or not to exercise this
discretion is “on the hearing of a complaint under Part 6 in respect of a notice of
termination”. As such, the Tribunal is satisfied that it is entitled to have regard to the
provisions of section 64A of the Act, notwithstanding the fact it was only commenced on
the 8th January, 2016, by the Residential Tenancies (Amendment) Act 2015
(Commencement of sections 30 and 42 and Part 4) Order 2016, in circumstances where
that section is in force at the date of hearing of the complaint before the Tribunal.
Accordingly, the Tribunal is satisfied that the notice should be deemed valid and the
Respondent Tenant ordered to vacate the dwelling, as she has been overholding since at
least the 11th May, 2015. Having regard to the absence of any evidence as to the
Respondent Tenant’s personal circumstances, but having regard to the right of the
Appellant Landlords to a prompt remedy, the Tribunal is satisfied that the Respondent
Tenant should be provided with 28 days from the date of issue of the Order of the Board
to vacate the dwelling.
Finding 2: We find that the Respondent Tenant is in rent arrears of €9,764.89 at the date
of hearing and that this should be paid by way of monthly instalments of €800.
Reasons: The Tribunal is satisfied that the Respondent Tenant was advised in January,
2015 of the fact a Receiver had been validly appointed. Accordingly, the Tribunal is
satisfied that the rent was then payable to the Receiver. It is clear no sum whatsoever
has been paid to the Receiver by the Respondent Tenant and that the Respondent
Tenant is also in breach of obligations in failing to allow the Landlords reasonable access
to the dwelling for the purposes of viewings related to its sale. No reason whatsoever for
either of these serious breaches of obligation have been put before the Tribunal. The total
sum owed, from the next date rent was due of the 1st February, 2015, to the date of
hearing of the 26th February, 2016, is 12 months and 26 days. From the evidence given
at hearing that the Respondent Tenant advised the Receiver’s agent that the rent payable
was €759.63 per month, the Tribunal is thus satisfied that the total sum owed is thus
€759.63 * 12 + (€759.63 * 12 / 365 * 26) = €9,115.56 + €649.33 = €9,764.89. In the
circumstances, having regard to the absence of any evidence relating to the means of the
Respondent Tenant, and the size of the sum outstanding, as well as the amount of the
monthly rent, but also having regard to the right of the Appellant Landlords to a prompt
remedy, the Tribunal is satisfied this should be paid by way of monthly instalments of
€800. However, having regard to the Appellant Landlords’ right to a prompt remedy, the
Tribunal is also satisfied that should the Respondent Tenant fail to pay any sum due and
owing, including any further rent, the total sum then owing should become immediately
due to the Appellant Landlords.
8. Determination:
Tribunal Reference TR0116-001543
In the matter of Luke Charleton, Valerie McNamara, Frank McNamara (Landlord)
and Hazel Keenan (Tenant) the Tribunal in accordance with section 108(1) of the
Residential Tenancies Act 2004, determines that:
1. The Notice of Termination served by the Applicant Landlords on the
Respondent Tenant, on the 14th May, 2015, in respect of the tenancy of the dwelling
at 1 St Patrick’s Terrace, Greenmount, Cork, 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 28 days of the date of
issue of the Order of the Board;
3. The Respondent Tenant shall pay the total sum of €9,764.89 to the Applicant
Landlords, in 11 consecutive monthly payments of €800, with a final payment of
€964.89, on or before the 28th day of each month, commencing the next month after
the issue of the Order. This sum represents rent arrears of €9,764.89 in respect of the
tenancy of the above dwelling;
4. The Respondent Tenant shall also pay any further rent outstanding from the
26th February, 2016, at the rate of €759.63 per month, or proportionate part thereof at
the daily rate of €24.97 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 be deferred and the total
sum owing will be reduced by the number of monthly instalments of €800 made to the
Applicant Landlords on or before each due date until the sum of €9,764.89 has been
paid in full;
6. For the avoidance of doubt any default in the payment of the monthly
instalments of €800 or any further rental payments due 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 Landlords.
The Tribunal hereby notifies the Private Residential Tenancies Board of this
Determination made on 01 March 2016.
Signed:
Eoin Byrne Chairperson
For and on behalf of the Tribunal.

Targeted Investment Opportunites ICAV v Cooke

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001707 / Case Ref No: 0216-24370
Appellant Landlord: Targeted Investment Opportunities ICAV
Respondent Tenant: Rosemary Cooke
Address of Rented Dwelling: Top Floor, 5 Vico Road, Dalkey , Dublin,
Tribunal: Aidan Brennan (Chairperson)
Thomas Reilly, Dairine Mac Fadden
Venue: Board Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 25 May 2016 at 10:30
Attendees: Claire Loftus (Savills, Respondent Landlord’s
representative)
Sinead Walsh (Savills, Respondent Landlord’s
Representative)
In Attendance: RTB stenographer
1. Background:
On 22 February 2016 the Landlord made an application to the Residential Tenancies
Board (the RTB) pursuant to Section 76 of the Residential Tenancies Act 2004 (the Act).
The matter was referred to an Adjudication which took place on 16 March 2016.
The Adjudicator determined that:
1. The Notice of Termination served on 19th January, 2016 by the Applicant Landlord
on the Respondent Tenant in respect of the tenancy of the dwelling at 5 Vico Road,
Top Flat, Dalkey, Co. Dublin is invalid.
2. The Respondent Tenant shall pay the sum of €12,000 to the Applicant Landlord,
within 56 days of the date of issue of this Order, being rent arrears in respect of the
tenancy of the above dwelling.
3. The Respondent Tenant shall also pay any further rent outstanding from 16th
March, 2016, being the date of the Adjudication hearing, at the rate of €1,200 per
month or proportional part thereof at the rate of €39.46 per day and any other
charges as set out in the terms of the tenancy agreement for each month or part
thereof, unless lawfully varied, until such time as she vacates the above dwelling.
On 4 April 2016 the landlord appealed to the Tribunal against the Adjudicator’s
determination. The ground of the appeal was Invalid Notice of Termination. The specific
ground of the landlord’s appeal was against the adjudicators finding that the warning
letter of 22nd October, 2015 did not meets the requirements of Ground 1 of section 34 of
the Act because the time period of 14 days which the Tenant was given to address the
rent arrears of €8,000 at that stage cannot be considered to be reasonable given the
significant sums of money involved. Ground 1 of section 34 of the Act requires a tenant to
be given a “reasonable time” in which to address any breach of his or her obligations
under the tenancy.
On 6 April 2016 the Board of the RTB approved referral of the dispute to the Tribunal.
The RTB constituted a Tenancy Tribunal and appointed Aidan Brennan, Thomas Reilly
and Dairine Mac Fadden as Tribunal members pursuant to Section 102 and 103 of the
Act and appointed Aidan Brennan to be the chairperson of the Tribunal (the Chairperson).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing.
On 25 May 2016 the Tribunal convened a hearing at the Board 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:
na
4. Procedure:
The Chairperson asked the party present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson enquired whether the party
had received the relevant papers from the Residential Tenancies Board (the RTB) in
relation to the case and whether they had received the RTB document titled “Tribunal
Procedures”. The landlord’s representative said that it seemed that she had not received
all of the relevant papers from the RTB but was not disadvantaged due to the fact that
she had her own file and confirmed that she had received the Tribunal Procedures
document. She said that she had received a recent email from the RTB attaching a
communication from the tenant referring to the non attendance by the tenant and other
matters. The Chairperson explained that while the Tribunal was a formal procedure it
would be held in as informal a manner as was possible and that the appellant landlord’s
representatives would be invited to present the landlord’s case. The respondent tenant
had advised the Tribunal that due to urgent, unforeseen circumstances, she would be
unable to be present at the RTB (sic) hearing and as put forth in “RTB Procedures,” she
expects that the hearing will continue in her absence and further that she fully expects
that her evidence, given at the original hearing of 16 March, 2016, will be taken under
consideration.
The Chairperson said that in the interest of fairness, and as normal in these
circumstances, the Tribunal would take the tenant’s submissions into account and would
question the landlord’s representatives, where appropriate, in relation to both the
evidence given on the landlord’s behalf and the tenants written submissions. 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 party present 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 advised the party that as a result of the Hearing, the Board of the RTB
would make a Determination Order which would be issued to the parties and could be
appealed to the High Court on a point of law only.
Claire Loftus was sworn in.
5. Submissions of the Parties:
Evidence of: Claire Loftus
The landlord became entitled to the rent on and from 12 June 2015 as a consequence of
the purchase of the dwelling. The dwelling consists of the top floor flat at 5 Vico Road.
The remainder of the premises is privately owned by several third parties and costs and
expenses relating to the entire premises are shared on an informal basis by the various
owners. In her opinion the dwelling, on visual inspection, looks worn and tired, the kitchen
is in good order, there is no visual evidence of leaks other than damage from an old roof
leak in the front room which needs to be addressed and the dwelling looks like it has not
been painted in a couple of years. She estimated that an amount of expenditure in the
order of €24,000 was required to renovate the property. The scope of the work required
includes dealing with mould, old leak damage, painting, papering, new appliances and a
contingency amount required for problems that arise during the work when dealing with
old buildings. She said that the work needed was cosmetic rather that structural. They
had been denied access to deal with fire and smoke alarm issues that needed to be
addressed; these had not been addressed and no work was carried out to date. There
was a meeting with the tenant sometime after March16, 2016 (date of adjudication) but
the tenant did not want to discuss anything. There was no discussion on rent, no rent
whatsoever was paid to the landlord and no apportionment account was received in
relation to the purchase of the property.
The landlord’s agents stated that they were unaware what the rent was before the
landlord took over ownership of the rented dwelling. They stated that the landlord had
bought the property from a receiver, who informed them that he never received rent from
the tenant. She said that they had not received the tenant’s deposit from the receiver or
the previous landlord but their policy was to refund deposits in any event provided there
were no rent arrears or other taxes or charges and the conditions of the Act were met by
the tenant. Her summary position was that they had exhausted all avenues in trying to
obtain the outstanding rent and wanted an order that the tenant vacate the dwelling.
Respondent Tenant’s case:
The tenancy commenced under a two year lease dated 1 August 2009. That lease
provided for a rent of €1800 per month reduced to €1700 per month for the first year to
cover the cost of repairs and painting. The tenant claims that the rent was subsequently
reduced to €1200 per month and that she had paid this amount of rent to the previous
landlords.
It was her position that she had a beneficial interest in the dwelling as she had carried out
certain works in the dwelling costing €15,435 on the basis of an agreement which she
entered into with the former owner. The case papers contain a detailed breakdown of the
works costing €15,435 and a solicitor’s letter to effect that there is a claim against the
previous owner and that an equitable interest has accrued to the tenant.
The tenant had acknowledged that she received the tenant pack which had been left by
the agent at the dwelling on 22 July 2015. She had stated to the adjudicator that she did
not receive the 14 day warning letter or the notice of termination but that she did not
dispute that they were sent, saying that she may have missed them because she travels
a lot. In response to a question from the Tribunal the landlord’s agent said that they could
offer no evidence that the rent was anything other than €1200 per month.
6. Matters Agreed Between the Parties
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7. Findings and Reasons:
Finding (1)
The tenant is in breach of her obligations under section 16 (a) (i) of the Act which section
obliges a tenant to pay to the landlord or his or her authorised agent the rent provided for
under the tenancy on the date it falls due for payment. The tenant is in rent arrears
calculated at the rate of €1200 per month (€39.45 per day) for a period of eleven months
and fourteen days from 12 June 2015 to 25 May 2016 (the Hearing date) and owes the
landlord the sum of €13752.30.
Reason:
The Tribunal accepts the evidence given by the landlord’s agent that the tenant did not
pay any rent to the landlord from 12 June 2015 to the date of the hearing.
Finding (2)
The landlord does not owe any monies to the tenant in relation to the €15,435 said to
have been expended by the tenant in respect of various repairs and redecoration.
Reason:
The landlord did not consent to the carrying out of the alleged repairs and redecoration
and the tenant had indicated that her claim was against the former landlord. In addition
the Tribunal found it difficult to reconcile how the dwelling could fit the description “a very
poor state of repair” given by the tenant in March 2016 with the expenditure of €11,130 on
repair and redecoration said to have been expended by her on work carried out to the
interior of the dwelling in August 2014. A further sum of €4305 was alleged to have been
expended, with the exception of small items, on the exterior of the entire property.
Finding (3)
The Notice of Termination served by the landlord’s agent on the 19 January 2016
is valid.
Reason:
The specific ground of the landlord’s appeal was against the adjudicators finding that the
warning letter of 22nd October 2015 did not meet the requirements of Ground 1 of section
34 of the Act because the time period of 14 days which the tenant was given to address
the rent arrears of €8,000, at that stage, cannot be considered to be reasonable given the
significant sums of money involved. Ground 1 of section 34 of the Act requires a tenant to
be given a “reasonable time” in which to address any breach of his or her obligations
under the tenancy. The agent for the landlord had submitted that the letter of 22 October
2015 did not demand payment of €8000 euro from the tenant within 14 days but had in
fact stated that if funds were not received to the landlord’s account within 14 days then
the tenant would receive a 14 day payment notice which would be followed with (sic) a 28
day eviction notice should the tenant fail to comply with her obligations. No amount of rent
was paid to the landlord’s account and the agent issued a formal 14 day warning letter on
9 November 2015. The landlord allowed a further period up to 15 January 2016 for the
payment of rent, but as rent remained unpaid a notice of termination was served on 19
January 2016.
Ground 1 of section 34 of the Act, which allows a landlord to terminate a tenancy where
the tenant has failed to comply with his/her obligations under the tenancy agreement,
requires a landlord to give a tenant an opportunity to remedy the failure, before the
landlord has a ground in which to terminate the tenancy. Should the tenant fail to remedy
the failure, the landlord can then terminate the tenancy in accordance with the provisions
of Part 5 of the Act. If breach of the tenancy agreement relates to a failure to pay rent,
Part 5 requires the landlord to serve a 14 day warning letter in accordance with section
67(3), and if there is still non-compliance the landlord can serve a notice of termination
giving 28 days notice pursuant to section 67(2).
Laffoy J. had cause to consider these precise provisions in Canty -v- Private Residential
Tenancies Board, [2007] IEHC 243 (2007)
She stated at page 23 of her judgment –
“In my view, the provisions of the Act of 2004 for the valid termination of a Part 4 tenancy
for non-payment of rent are very technical and confusing. It is difficult to understand, why,
in relation to non-payment of rent, the notification required by para (a) of ground 1 in s. 34
could not have been made co-terminous with the notification under s.67 (3). As it has not
been, it seems to me that prudence dictates that a landlord invoking ground 1 should
serve notice in the form required by para (a) on the tenant allowing at least fourteen days
for remedying the breach, that is to say discharging the outstanding rent, although, on the
facts of a particular case, that period might not constitute a “reasonable time” within the
meaning of para (a)”
A further difficulty outlined by Laffoy J. is that there is no time period prescribed by the Act
pursuant to ground 1 in s. 34, except that it must be reasonable. A landlord is therefore
required in each individual case to decide what is reasonable in the circumstances. In the
Canty decision, 14 days was considered the minimum amount of time that should be
afforded the tenant to remedy the breach. The Tribunal is of the opinion
that in this case the landlord’s agent afforded every and several opportunities to the
tenant to engage on the matter of rent arrears but no meaningful response was received,
nor for that matter was rent ever paid to the landlord’s account. In a situation where the
tenant is minded to withhold the payment of rent, and the landlord’s agent has made
several attempts to genuinely engage with the tenant then the minimum period of 14 days
given by the landlord’s agent and notified to the tenant in the letter of 22 October 2015
cannot be said to be unreasonable as the tenant was minded to withhold the rent it would
seem in order to recoup her alleged expenditure of €15,435. At the date of the Tribunal
hearing payment of rent continued to be withheld by the tenant and further arrears had
accumulated. The landlord’s agents, despite their best efforts had not been successful in
getting a rent payment in any amount from the tenant and proceeded with the further
steps necessary to validly terminate the tenancy. The subsequent formal 14 day warning
letter and the notice of termination served by the landlord’s agent satisfy the requirements
of the Act.
8. Determination:
Tribunal Reference TR0416-001707
In the matter of Rosemary Cooke (Tenant) and Targeted Investment Opportunities
ICAV (Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
(1) The Notice of Termination served on 19th January, 2016 by the Appellant
Landlord on the Respondent Tenant in respect of the tenancy of the dwelling at Top
Flat, 5 Vico Road, Dalkey, Co. Dublin is valid.
(2) The Respondent Tenant and all persons residing in the above dwelling shall
vacate and give up possession of the dwelling within 28 days of the date of issue of
the Order.
(3) The Respondent Tenant shall pay the sum of €13,752.30 to the Appellant
Landlord, within 56 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 also pay any further rent outstanding from 25
May 2016 at the rate of €1200 per month or proportional part thereof at the rate of
€39.45 per day and any other taxes or 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 Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
10 June 2016.
Signed:
Aidan Brennan Chairperson
For and on behalf of the Tribunal.

Daly v Quigley

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001580 / Case Ref No: 1215-22825
Appellant Landlord: Frances Daly
Respondent Tenant: Brendan Quigley
Address of Rented Dwelling: Flat 3, 81 John Street , Kilkenny, R95N598
Tribunal: Suzy Quirke (Chairperson)
Eoin Byrne, James Egan
Venue: Room G.02, Department of the Environment,
Newtown Road, Wexford
Date & time of Hearing: 10 March 2016 at 2:30
Attendees: Frances Daly (Applicant Landlord)
Clodagh Daly (Applicant Landlord’s Representative)
Brendan Quigley (Respondent Tenant)
RebekahWalsh (Respondent Tenant’s
Representative)
In Attendance: DTI Stenogropher
1. Background:
On 11 December 2015 the Applicant Landlord made an application to the Private
Residential Tenancies Board (“the PRTB”) pursuant to Section 76 of the Act. The
landlord made a claim for over holding and in a counter application, the tenant made a
claim for invalid notice of termination. The matter was referred to a Mediation following
which a Statement of Mediation was issued dated 12 December 2015 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 Flat 3, 81 John Street, Kilkenny.’
Subsequently the unresolved matters between the parties were referred to a Tribunal
following an application by the Applicant Landlord on 1 February 2016. The application
related to alleged over holding, breach of tenant obligations and anti-social behaviour.
The application was approved by the Board of the PRTB on 2 February 2016. The Board
constituted a Tenancy Tribunal and appointed Eoin Byrne, Suzy Quirke, James Egan 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”).
On 16 February 2016 the Parties were notified of the constitution of the Tribunal and
provided with details of the date, time and venue set for the hearing.
On 10 March 2016 the Tribunal convened a hearing at Room G.02, Department of the
Environment, Newtown Road, Wexford.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the PRTB in relation to the case and that
they had received 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 conducted in a manner that would be as informal
as possible; that the person(s) who applied for the Tribunal hearing (the Applicant) would
be invited to present her case first; that there would be an opportunity for crossexamination
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 Applicant. 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 Act].
The parties were then sworn in and the hearing commenced.
5. Submissions of the Parties:
The Applicant Landlord’s Case:
The Applicant Landlord stated that she had served a notice of termination on the
Respondent Tenant giving him 7 days to vacate the dwelling, the grounds for termination
of his tenancy being breach of tenant’s obligations, specifically anti-social behaviour. This
notice was served on 2 December 2015. She stated that this arose subsequent to a
search of the dwelling carried out by An Garda Siochana on 26 November 2015 who, she
submitted, advised her to terminate the tenant’s tenancy. She stated that on that
occasion the Gardai had found an unsealed bag of compost on top of a wardrobe and a
large lamp found in a wardrobe which was emitting a strong source of heat. She was
concerned that this constituted a fire hazard and was putting the building and its other five
tenant occupants in danger as well as herself as her own house immediately adjoined the
building in which the dwelling was located
The lamp and bag of compost were documented in a letter from An Garda Siochana
dated 3 March 2016. The letter also noted the ‘presence of used needles left all over the
flat’. The letter from An Garda Siochana stated that the searches carried out on 26
November 2015 and on 20 January 2016 were both on foot of ‘duly issued warrants’.
The Applicant Landlord stated that the Gardai had told her that they had a search warrant
and that they were entering the dwelling under the powers available to them under the
Misuse of Drugs Act. They advised her that she could either provide them with a key or
they would use force to enter the dwelling. She duly gave them keys and subsequent to
this she said they advised her to terminate the tenancy. The notice of termination was
served on 2 December 2015 and when the Respondent Tenant failed to vacate the
dwelling on expiry of the notice period, the Applicant Landlord brought an application for
mediation to the PRTB on 11 December 2015.
The Applicant Landlord acknowledged that she did not then, nor has she since 26
November 2015, entered the dwelling or engaged in any dialogue with the Respondent
Tenant save that entered into during the course of the failed mediation process.
She maintained that she was simply relying on advice from An Garda Siochana to
terminate the tenancy as not to do so would potentially put her other tenants, the building
and her own house in the adjoining building in the way of harm or danger.
The Respondent Tenant’s Case:
The Respondent Tenant maintained that An Garda Siochana had not entered the
dwelling on 26 November 2015 as his partner, and witness at the hearing, was in the
dwelling throughout the entire day. He acknowledged that they might have entered the
dwelling on 27 November 2015.
The Respondent Tenant refuted the Applicant Landlord’s claim that the lamp or light was
a fire hazard as he maintained that it wasn’t on as there was no bulb in it. He explained
that he was a carpenter by trade and was very aware of what constituted a fire hazard.
He also submitted that the Applicant Landlord hadn’t actually been in the apartment
herself but was relying solely on the evidence of An Garda Siochana who may, or may
not, have been in the dwelling on 27 November 2015. An Garda Siochana also searched
the dwelling on 20 January 2016 but this occurred after the application to the PRTB and
is therefore in-admissible. There was some confusion during evidence as to whether the
Respondent Tenant and his witness were referring to the alleged search by Gardai on 26
or 27 November 2015 or that of 20 January 2016 which they acknowledged had taken
place.
The Respondent Tenant maintained that on the day the 7-day notice was served, 2
December 2015, the Applicant Landlord and her son, attempted to enter the dwelling. He
claimed that his partner who was in the dwelling at the time heard keys being rattled and
the door handle being tried. The Respondent Tenant’s Representative and witness
stated at the hearing that she thought their dwelling was being broken into and she called
the Respondent Tenant who phoned the Gardai. She stated that the saw the Applicant
Landlord’s son outside looking up at the window and said that she felt intimidated. The
Applicant Landlord refuted this allegation and stated that she was aware of her rights and
obligations in relation to entering a rented dwelling and would never do so without the
prior consent of a tenant.
The Respondent Tenant alleged there was never a search warrant to search his dwelling
as he had called on several occasions to the Garda station asking for it to be produced
but it was never made available to him and he thought at this stage that the Gardai were
avoiding him. No search warrants were entered in evidence.
The Respondent Tenant submitted a number of character and medical references in
evidence one of which stated that he had a medical condition which required B12
injections, thus explaining the needles found during the Garda search. His witness stated
that the bag of compost was for her garden as the council had offered her a house in
September 2015 and it was her intention to garden it once the weather improved.
Finally the Respondent Tenant submitted that he had always paid his rent and that there
were no arrears, he was trying to improve his circumstances, had a job in Dublin and his
problems with addiction were behind him. He accused the Applicant Landlord of
victimising him when there were other tenants in the building who he claimed were far
more guilty than he of causing disturbances and anti-social behaviour. He maintained
that he had tried to talk her but that she wouldn’t engage with him in any way.
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 19 August 2013.
2) The rent is currently €100 per week.
3) The Respondent Tenant paid a security deposit of €400 which is still retained by the
Applicant Landlord.
4) The Respondent Tenant remains in occupation of the dwelling.
5) The dwelling address is Flat 3, 81 John Street, Kilkenny.
6) The notice of termination was served by hand to the Respondent Tenant on 2
December 2015.
7. Findings and Reasons:
Having considered the evidence provided and based on the balance of probabilities the
Tribunal has made the following findings:
Finding No. 7.1
The Tribunal finds that the Notice of Termination served on 2 December 2015 by the
Applicant Landlord on the Respondent Tenant is invalid.
Reason(s):
Under S34 of the Act, a landlord can terminate a Part 4 tenancy on various grounds one
of which is set out as Grounds for Termination No 1 – ‘The tenant has failed to comply
with any of his or her obligations in relation to the tenancy…’
S16 of the Residential Tenancies Act 2004 outlines tenant’s obligation and S16 (h) states
that the tenant shall ‘not behave … in a way that is anti-social…..’ S17 proceeds to
defines anti-social behaviour as –
(a) engage in behaviour that constitutes the commission of 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 … in the dwelling … and … includes violence,
intimidation, coercion, harassment or obstruction of, or threats to…
S67 outlines the notice periods required to terminate a tenancy where a tenant is in
default by reason of his failure to comply with the obligations of his tenancy. Under
S67(2) that period is –
(a) 7 days, if the tenancy is being terminated by reason of behaviour of the
tenant that is—
(i) behaviour falling within paragraph (a) or (b) of the definition of “behave in a
way that is anti-social” in section 17 (1), or
(ii) threatening to the fabric of the dwelling or the property containing the
dwelling,
The Tribunal took account of the evidence submitted by both parties and their
representatives and on balance found that the only evidence of anti-social behaviour
were the suggestions of behaviours outlined in the letter from An Garda Siochana dated 3
March 2016. Unfortunately neither party had thought to subpoena any of the Gardai
referred to during the hearing and in their absence it was not possible for the parties
present to question or cross-examine them on the contents or veracity of the
aforementioned letter.
Terminating a tenancy on the grounds of anti-social behaviour of the most severe kind
and invoking a 7-day notice is a very serious matter and must be accompanied by robust,
direct evidence. The Tribunal found that the Applicant Landlord had not provided this
evidence to their satisfaction. Accordingly her application must fail.
8. Determination:
Tribunal Reference TR0216-001580
In the matter of Frances Daly (Landlord) and Brendan Quigley (Tenant) the Tribunal
in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Notice of Termination served on 2 December 2015 by the Applicant Landlord on
the Respondent Tenant in respect of the tenancy of the dwelling at Flat 3, 81 John
Street, Kilkenny, is invalid.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 15 March 2016.
Signed:
SuzyQuirke Chairperson
For and on behalf of the Tribunal.

Duniyva v Gibson

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0715-001275 / Case Ref No: 0415-17788
Appellant Tenant: Mary Duniyva
Respondent Landlord: Patrick Gibson
Address of Rented Dwelling: 58 Grosvenor Square, Rathmines , Dublin 6,
Tribunal: Eoin Byrne (Chairperson)
Helen-Claire O’Hanlon, Dervla Quinn
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2,
Date & time of Hearing: 22 September 2015 at 2:30
Attendees: For the Appellant:
Mary Duniyva (Tenant),
Harry Carpendale (Solicitor for the Appellant),
David Gleeson (Witness),
Patrick Conlon (Witness).
Gerard Bracken (Witness)
For the Respondent:
Patrick Vincent Gibson (Landlord),
Ronan Flaherty (Solicitor for the Respondent),
Nadine Meissonave (Landlord’s Representative)
John Maguire (Landlord’s Representative)
Vincent Edward Gibson (Witness),
Henrique Lopes Ferreira (Witness),
Clara White (Witness)
Victor Gibson (Witness)

In Attendance:

Gwen Malone Stenographers,
PRTB appointed Interpreter.

1. Background:
On the 10th April, 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 the 8th June, 2015. The Adjudicator determined that:
The Respondent Landlord shall pay the total sum of €200 to the Applicant Tenant, within 14 days of the date of issue of the Order, being damages for the Respondent Landlord’s failure to supply bank account details, in respect of the tenancy of the dwelling at Flat 4, 58 Grosvenor Square, Rathmines, Dublin 6.
The Applicant Tenant’s application, regarding the Respondent Landlords breach of his duty owed to the Applicant Tenant in respect of enforcing neighbouring tenants’ obligations under section 15 of the Act, in respect of the tenancy of the above dwelling is not upheld.
Subsequently a valid appeal was received from the Tenant by the PRTB on the 15th July, 2015. The grounds of the appeal was regarding a breach of landlord obligations.
The Board, at its meeting on the 24th July, 2015, approved the referral to a Tenancy Tribunal of the appeal. The PRTB constituted a Tenancy Tribunal and appointed Eoin Byrne, Helen-Claire O’Hanlon and Dervla Quinn 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 4th 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 the 22nd September, 2015, the Tribunal convened a hearing at 14:30 at the offices of the PRTB, Floor 2, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
Letter from Appellant Tenant’s doctor, submitted by the Appellant.
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 asked the parties if they wished to take one of the witnesses out of turn, Mr. Conlon, and the parties agreed to do so.
The Chairperson explained that following this, both parties would be given an opportunity to make a final submission.
The Chairperson stressed that all evidence would be taken on oath and be recorded by the official stenographer present and he reminded the Parties that knowingly providing false or misleading statements or information to the Tribunal was an offence punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the Board would make a Determination Order which would be issued to the parties and could be appealed to the High Court on a point of law only.
5. Submissions of the Parties:
By agreement of the parties, the evidence of Patrick Conlon was taken first, so he could be excused after his evidence was heard.
Evidence of Patrick Conlon:
Mr. Conlon stated that he was a neighbour of the Appellant. He stated that he had no difficulty with noise coming from the dwelling and that he had not been subjected to any disturbance as a result of noise coming from the neighbouring dwelling. He did, however, accept that he spent most of his time at the rear of his dwelling and would not hear noise when he was there. He indicated that he would not know which tenants were resident in which flats and referred only to one incident of noise occurring on the street outside the dwelling, but that he did not know which flat they were from nor was noise that annoyed him a general problem. He denied ever saying anything about noise to anyone and denied ever asking when any of the neighbouring tenants would be leaving the dwelling.
Submissions on the preliminary issue concerning matters being res judicata (rule that a final judgement ruled by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and constitutes an absolute bar to a subsequent action involving the same claim).
At the conclusion of Mr. Conlon’s evidence, a preliminary issue was raised by the Respondent’s solicitor in respect of the matters under dispute. He contended that a number of issues allegedly under dispute had previously been determined following the Tribunal hearing on the 1st April, 2015, and were thus res judicata.
The Appellant’s solicitor indicated that there were five outstanding issues in dispute.
– The first concerned alleged harassment, intimidation and victimisation of the Appellant.
– The second concerned the alleged failure of the Respondent to provide the Appellant with his bank account details between 2011 and 2013.
– The third concerned the alleged failure of the Respondent to complete rent allowance forms for the Appellant.
– The fourth concerned legal costs and the costs of the Appellant’s applications to the PRTB.
– The fifth concerned alleged anti-social behaviour and the alleged failure of the Respondent to take adequate steps to enforce the obligations of neighbouring tenants, who reside in dwellings in the same building which the Respondent also owns.
The Appellant Tenant’s solicitor contended that none of those five issues had been determined by the previous Tribunal and referred to their findings, which detailed only that the notice of termination was valid and that the Appellant Tenant was overholding, and did not include any finding in respect of whether the Respondent Landlord was or was not in breach of obligations. In those circumstances, the Appellant Tenant contended that the issues were not res judicata and asked the Tribunal to hear evidence in respect of each and to consider the issues.
The Respondent’s solicitor referred to the report of the Tribunal of the 28th April, 2015, that issued after the hearing on the 1st April, 2015. He referred to the outline of the evidence given at that hearing concerning alleged penalisation and victimisation of the Appellant, as referred to in the Tribunal report. He also referred to the evidence in respect of alleged anti-social behaviour, stating that it was also heard by the Tribunal on the 1st August. He further referred to the issue of rent allowance forms, and stated that the summary of evidence referred to the Appellant’s “social welfare claims”. He also indicated, in any event, and it was accepted, that the documentation in respect of rent allowance was ultimately completed, the arrears paid, and that the rent was up to date, the forms being completed and the issue resolved prior to the previous hearing. He stated that each of those issues was dealt with on the last date and that evidence was given and subject to cross-examination, as outlined in that report. He referred to the findings and reasons section of the report where it was stated by the Tribunal “[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”. He thus contended that the findings of the Tribunal had to be read as including a finding that the Respondent Landlord was not in breach of obligations in respect of victimisation, anti-social behaviour and alleged failure to complete rent allowance forms, given that evidence in that respect was given on the last date. He asserted that if the Tribunal had considered the Respondent to be in breach of obligations, a finding would have been made in that respect, and that none was. He contended that the Tribunal’s finding that the notice was valid had to be read as a finding that the Appellant’s complaints in respect of victimisation and harassment had not been upheld and contended that had claims of conspiracy or penalisation been substantiated, the notice of termination would have been found to be invalid. He thus asserted that those issues were res judicata, at least insofar as they concerned issues pre-dating the 1st April, 2015. He accepted, however, that the issue of legal costs was not res judicata, nor was the issue concerning failure to provide bank account details, insofar as it concerned the failure to provide those details between September 2011 and May 2013. He accepted that a finding was made in September 2011 that those details had to be provided and that they were not provided until May 2013 and did not contest the adjudicator’s finding in this respect.
At that stage, the Tribunal rose briefly to consider the preliminary issues. The Tribunal conferred and reached findings in respect of each issue. The Tribunal returned to the hearing room and advised the parties of these findings. The Tribunal indicated that, in respect of the harassment and victimisation complaints, evidence was given at the hearing of the 1st April 2015, and considered by the Tribunal and that that matter, insofar as it concerned events before the 1st April 2015, was res judicata. In respect of the second matter, concerning the failure to provide bank account details, the Tribunal found that it had not been considered since the finding made in 2011, given the absence of any evidence in respect of the loss suffered after September 2011 in the Tribunal report of the 28th April 2015, and that it was properly before the Tribunal. In respect of the third issue, the Tribunal found that evidence had been given at the hearing of the 1st April 2015, given the reference in the report to “social security claims” and that the matter was thus res judicata in its entirety, given that the relevant forms were completed prior to that hearing. In respect of the fourth issue, it was accepted by both sides that the matter of legal costs and PRTB application costs had not been considered previously. In respect of the final issue, the Tribunal found that the allegations of anti-social behaviour and the alleged failure of the Respondent to take appropriate steps to enforce the obligations of the neighbouring tenants was res judicata, insofar as it concerned events prior to the 1st April 2015, given the fact evidence in this respect was given at the hearing on that date and the fact that Tribunal did not find any breach of obligations on the part of the Respondent.
Appellant Tenant’s Case, Appellant Tenant’s evidence:
As indicated above, the Appellant Tenant’s case concerned five matters. She asserted that she had lived in the dwelling for approximately four and a half years. She stated that a number of Brazilian students moved into the downstairs flats (below her flat) approximately one year ago and continued to make loud noise on a regular basis, day and night, as late as 3am. She contended that the Respondent did not take steps to deal with the issues as he simply wanted the Appellant to move out of the dwelling. She stated that there had been very little contact between herself and the Respondent between April and the date of hearing. She contended that when the Respondent visited the dwelling there was no noise but that in general there was noise carried from the neighbouring flats and that she could hear when they were talking loudly. She asserted that due to the layout of the dwelling, her flat was directly above the area where the tenants below socialised and that, while they could go elsewhere to sleep, she had to put up with noise from below. In respect of the recordings submitted prior to the hearing, she stated that they had been made when the door of her dwelling was closed and when the windows were closed. She stated that the behaviour of the tenants included screams and knocking at doors and that it could occur at any time. She asserted that the Respondent regularly visited the dwelling to tend to the garden and that she was bullied and victimised by him, in particular with regard to the service of the notices of termination.
In respect of the loss suffered by her as a result of the failure of the Respondent to provide her with bank account details, she asserted that she had difficulties paying rent until they were provided in May, 2013. She stated that she had to send the rent by postal order and that each time it cost her about €9. She asserted that she was inconvenienced as a result, including the time taken to get the postal order and post it to pay the rent.
She outlined one incident where she had locked her keys in the dwelling and the Respondent’s son attended the dwelling with a Garda when letting her back in. She accepted that she got back into the dwelling on the same day but contended that she was also told that she had no right to stay in the dwelling on the same day.
In cross-examination, she accepted that she had not made contact with the Respondent directly since June, so far as complaints of anti-social behaviour were involved. She did, however, outline that she had made complaints to the neighbouring tenants and had talked to them about noise. She denied making any derogatory remarks to any other parties. She clarified that the incident recorded occurred on the 14th June and had occurred despite her trying to avoid it. She stated that she saw the Respondent’s car arriving and then leaving such that she thought they had left and that it was only as she went to get into the dwelling that she met the Respondent and his wife, whereupon she was harassed, per the recording supplied.
David Gleeson’s evidence:
Mr. Gleeson stated in evidence that he resides in the same square as the Appellant, albeit not in the same building. He stated that he regularly visited the dwelling but accepted that he had not directly witnessed any anti-social behaviour since the previous Tribunal hearing in April. He asserted that, in his opinion, the Appellant’s state of mind had suffered as a result of the ongoing situation and the absence of a resolution. He stated that the fundamental issue from her perspective was the fact she was not being allowed peaceful occupation of the dwelling. In cross-examination, he accepted that he was not an expert but merely asserting that from his observation the Appellant’s state of mind had suffered.
Appellant’s final submissions:
The Appellant’s solicitor submitted that the prolonged noise she suffered from, as she lives alone, caused her upset, anxiety and stress. He contended that the actions of the Respondent in visiting the dwelling with Gardai were intimidating and part of a concerted effort to get rid of the Appellant. Her solicitor stated that the Appellant was deserving of sympathy and that her evidence had to be listened to, even though the Appellant occasionally found it difficult to express herself. He also sought her legal costs, as outlined in her written application, where there had been a number of disputes and issues with termination notices, and where the Appellant was not experienced with the procedures required to be followed.
Respondent Landlord’s Case:
The Respondent Landlord initially proposed calling a previous tenant of another dwelling in the same building, Clara White, and submitting a letter from her. However, given that she vacated the dwelling prior to the previous hearing on the 1st April, and given the finding of the Tribunal that those issues had been determined at the previous hearing, the Tribunal indicated that it did not see the relevance of the proposed evidence to the issues remaining in dispute. The Respondent’s solicitor indicated that it concerned the Appellant’s credibility, in circumstances where the Appellant had previously denied that the witness had ever resided in the building, but that, in light of the Tribunal’s finding on the preliminary matter, was not going to call her evidence.
Vincent Edward Gibson’s evidence:
Mr. Gibson, the Respondent’s son, indicated that on the 22nd June, 2015, he received a phone call from the Appellant and attended at the dwelling within two hours. He indicated that he was very anxious to protect himself and requested a Garda join him, also indicating that the Garda was there to witness him letting the Appellant back into the dwelling. He stated that duplicate keys were cut and were left at the Garda station for the Appellant to collect, albeit the Appellant subsequently contacted him to say she had found her keys. He indicated that a number of days later the Appellant again contacted him to advise him that she had lost her keys, whereupon he delivered the duplicate keys to her on the 26th June. He also indicated that the Appellant had asked him on the 22nd June to contact representatives to get her alternative accommodation and that he believed she had been offered such accommodation. In respect of noise complaints, he stated that there was no noise when he was at the dwelling on the 21st June, and that he had also been made aware of allegations of noise from the Appellant.
Under cross-examination, he stated that he did not know the Garda who accompanied him to the dwelling and that he had never met the Garda before. He re-iterated that the reason for her attendance was his protection and that he refuted any allegation of intimidation. He stated that he attended the dwelling regularly to tend to the garden and to protect the property, at day and night, and that he was not aware of any anti-social behaviour or noise. He asserted that he spoke to most tenants when noise complaints were made, throughout the summer, and that he talked to tenants on an ongoing basis. He indicated that he only inspected the external common areas and did not inspect the individual flats internally unless invited to do so.
Gerard Bracken’s evidence:
Mr. Bracken indicated that he was a current tenant on the 2nd floor of the building. He stated that he did not agree with the noise complaints. He asserted that he generally heard doors opening and closing and some light chatter but that in his five and a half years in the dwelling, he had not had any noise difficulties and that there was no noise that interfered with his study or sleep. He indicated that his dwelling was directly above one of the two dwellings let to Brazilian students. However, he stated that he did occasionally hear arguments between the Appellant and the Brazilian tenants, including raised voices, albeit he indicated that he had never made a complaint to the Respondent about noise. He also recalled one incident where the Appellant called other tenants “animals”. In cross-examination, he stated that he had only visited the Appellant’s dwelling three times over his five years in the dwelling but further claimed that he had never heard noise while visiting her flat.
Henrique Lopes Ferreira’s evidence:
Mr. Lopes Ferreira stated that he lived downstairs in the building, albeit in the flat closest to the front of the building, not the flat at the rear directly beneath the Appellant’s dwelling. He indicated that he had lived there for approximately seven months. He disagreed with the evidence given by the Appellant and stated that her complaints sometimes arose when all the tenants in the two lower flats were doing was talking. He stated that she did not complain directly but had kicked the door of the downstairs flat and resorted to shouting. He claimed that the Appellant had screamed “animals” and “terrorists” and had also said it was “not carnival”. He stated that it was not possible to hear people talking in neighbouring apartments in the building and that while there was occasionally music played in his apartment, it was background music and that the noise the Appellant complained of was usually only talking. He also stated that he had complained to the Respondent about the Appellant’s behaviour and had provided the Gardai with a video recording of her screaming and shouting, and following him to college. In cross-examination, he stated that he was unaware whether or not the Appellant had ever made complaints to the Gardai. He accepted that he had never received complaints from the Appellant about noise when he was in the apartment alone. He also accepted that he socialised regularly with the tenants in the other ground floor apartment.
Patrick Vincent Gibson’s evidence:
The Respondent accepted in evidence that the recording supplied by the Appellant was a recording of him and his wife. He stated that it was the first meeting that had ever occurred between the Appellant and his wife. In respect of the reference to the Gardai visiting the dwelling in the recording, he stated that that was a reference to the complaint that had been made by the neighbouring tenants to the Gardai about the Appellant. He claimed that the actions of the Appellant caused him distress and upset. He indicated that he had not received any complaints from any other tenants concerning noise. He stated that he had owned the building for about forty years and that while there were some stud walls in the building, even the solid walls allowed some noise through, given their construction, and that it was possible that you could hear neighbours chatting, albeit it would not be possible to make out the words of the conversation. He contended that the dispute process caused him stress, upset and tension which he was not able to tolerate, in particular where he is good friends with Mr. Conlon, the next door neighbour. In cross-examination, he stated that he had been a landlord for years and was used to dealing with tenants. He accepted that there had been three different termination notices served. He further refuted any allegation that he needed to bring Gardai with him to the building, as he visited each Sunday to put the dustbins out, albeit he accepted that he did not deal directly with tenants on such occasions.
Respondent’s final submissions:
The Respondent’s solicitor relied upon the written submissions furnished in advance and asserted that it was clear from all the evidence that the Appellant continually contended that others were lying when it was not possible to corroborate those assertions. He stated that she had subpoenaed her 89 year old neighbour but that his evidence did not corroborate her version of events and that he did not see how she could be entitled to damages, in particular where she had made disingenuous and misleading allegations of bullying in an attempt to fit a picture of harassment. In light of the spurious nature of the Appellant’s claim, the Respondent’s solicitor also sought his legal costs.
6. Matters Agreed Between the Parties
The parties agreed that the Appellant was still residing in the dwelling and that rent was currently paid up to date. The Respondent agreed that bank account details were not provided until May, 2013, despite the finding in 2011 that they had to be provided.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence presented to it by the Parties, the Tribunal’s findings and reasons thereof, are set out hereunder.
Finding 1: The Tribunal find that the issues of alleged harassment and victimisation, alleged anti-social behaviour, alleged breach of the Respondent’s duties in respect of failing to enforce tenant obligations and the alleged failure to complete rent allowance documentation are res judicata, insofar as they concern events prior to the 1st April, 2015, and were considered by the Tribunal hearing on that date. The Tribunal also find that complaints in respect of those issues, insofar as they concern events after that date, are not res judicata and fall to be considered by the Tribunal.
Reasons:
It is clear from the report of the Tribunal that issued on the 28th April 2015, that detailed evidence was given at the hearing on the 1st April 2015, in respect of alleged harassment, intimidation and victimisation of the Appellant by the Respondent. It is also clear that the Tribunal had a duty to hear and consider that evidence and, if necessary, make findings that such behaviour was in breach of obligations under the Act. The Tribunal report records no finding of breach of duty and, as such, where the evidence was heard, it is clear to this Tribunal that a determination was reached that the Respondent was not in breach of his obligations at that time. While it is not necessary for present purposes to determine whether such alleged behaviour, if made out, being discriminatory and penalising behaviour prohibited by s. 14 of the Act, would be such as to make an otherwise valid notice of termination invalid, and whether the Act in fact permits the Tribunal to make such a finding of invalidity, for present purposes, it is clear that the previous Tribunal heard all the evidence, including the evidence given on behalf of the Respondent, and determined that there had not been a breach of obligations by the Respondent. This Tribunal is particularly satisfied that the matters are res judicata where the previous report outlines that that Tribunal only reached its findings having considered all the documentation submitted and the evidence before it. There is no suggestion in the report that the Tribunal did not consider the evidence of alleged harassment, victimisation and intimidation, alleged anti-social behaviour, alleged breach of Respondent’s duties in that respect or the alleged breach of duties in respect of the rent allowance form. In those circumstances, the present Tribunal is satisfied that each of those issues is res judicata as a result of their previous determination. Further, in any event, while it is not necessary to resolve the current dispute, the Tribunal is not satisfied that there is any obligation under the Residential Tenancies Act for a landlord to complete rent allowance documentation or that a failure to do so would be a breach of any obligation under that Act, albeit detailed submissions were not made to the Tribunal in this respect.
Finding 2: We find that the Respondent Landlord was in breach of obligations, in respect of the obligation to allow the Appellant Tenant peaceful and exclusive occupation of the dwelling, in respect of one incident only, insofar as concerns all events since the 1st April 2015, to the date of hearing, such that the Appellant Tenant is entitled to damages in this respect in the amount of €200. However, the Tribunal also find that Respondent Landlord is not otherwise in breach of duties in this respect, nor in breach of the obligation not to penalise the Appellant.
Reasons:
The Tribunal is satisfied that the Appellant Tenant has not proved the existence of any concerted campaign by the Respondent Landlord to intimidate, harass or victimise her, or otherwise penalise her under s. 14 of the Act, in particular in light of the evidence given by the parties concerning the relatively low frequency of interactions between the parties, and the limited contact between them since the 1st April, as accepted by the Appellant Tenant. However, the Tribunal is satisfied that the incident that occurred when the Respondent and his wife visited the dwelling, and the altercation that followed, as recorded by the Appellant and submitted to the Tribunal, did constitute an unlawful interference with the Appellant’s peaceful and exclusive occupation of the dwelling. As such, the Tribunal is satisfied that, in this respect, the Appellant has proved that the Respondent was in breach of his obligations under section 12(1)(a) of the Act. The Tribunal also notes that the Respondent did not object to the submission of that recording and did not dispute the accuracy of the recording. The Tribunal is satisfied that this was a stressful incident and caused the Appellant unnecessary suffering and stress and that, accordingly, the Appellant is entitled to damages in this respect in the amount of €200, having regard to the level of stress the incident caused but also having regard to its limited nature. However, the Tribunal is also satisfied that the single incident is the only breach of obligation in this respect that the Appellant has proved, having regard to the lack of any independent evidence in respect of the other alleged breaches of obligation, the evidence given by the Respondent denying any other breaches of obligation in this respect and the limited contact between the parties since the 1st April 2015.
Finding 3: We find that the Respondent Landlord was in breach of duties in failing to provide the Appellant Tenant with his bank account details between September 2011 and May 2013, that the Appellant suffered inconvenience and loss as a result such that she is entitled to damages of €300 in this respect and that this sum, along with the sum of €200 outlined at finding 2 above, should be paid to the Appellant within 14 days of the issue of the Order of the Board.
Reasons:
The Tribunal is satisfied that there was a previous finding made in September 2011 that the Respondent had an obligation to furnish the Appellant Tenant with her bank account details and that the Respondent accepts this was not done until May 2013. The Tribunal is also satisfied that while the issue was raised by the Appellant during the previous hearing on the 1st April, the issue in respect of the continuing loss suffered by the Appellant as a result of the failure of the Respondent to provide her with those details after the determination of September 2011 was not considered by that Tribunal nor has it previously been determined. It is clear from the evidence of the Appellant that this failure caused her significant additional loss, as she had to pay her rent by postal order for a period of approximately 20 months. Having regard to her evidence in respect of the cost of this, at approximately €9 per postal order, in addition to the inconvenience suffered in having to visit the post office each month rather than paying by standing order or otherwise directly into the bank account of the Respondent, the Tribunal is satisfied that it is appropriate to award the sum of €300 in respect of the loss and inconvenience suffered. In respect of the total sum of €500 thus awarded, the Tribunal is satisfied that it is appropriate to allow 14 days to pay this sum, bearing in mind the size of the sum, the nature of the inconvenience suffered by the Appellant, her right to a prompt remedy and the absence of any detailed evidence concerning the means of the Respondent.
Finding 4: We find that the Appellant Tenant has not proved that the neighbouring tenants are in breach of their obligations under their tenancies in respect of anti-social behaviour, nor has the Appellant Tenant proved that the Respondent Landlord is in breach of his obligation to enforce the obligations of those tenants.
Reasons:
The Tribunal is satisfied that all the independent evidence given tends to show that there is no anti-social behaviour on the part of any of the tenants of the dwelling. In particular, the evidence given by Mr. Bracken, a fellow tenant of the dwelling, does not show any anti-social behaviour, nor does the evidence given by Mr. Conlon. While the recordings submitted by the Appellant Tenant do evidence voices, they do not, of themselves, give evidence of anti-social behaviour, in particular as they are limited evidence and do not show the required degree of persistence as required under s. 17 of the Act. Also, having regard to the evidence of Mr. Lopes Ferreira, the Tribunal is not satisfied that the behaviour complained of is anything more than normal living noise caused by the occupation of individual dwellings by multiple tenants. As such, the Tribunal is not satisfied that the behaviour of the neighbouring tenants is in breach of obligation. Further, in light of the obligation on a person under s. 77 to refer the issue to the Landlord in question, and in light of the evidence of the Appellant Tenant concerning the limited contact between herself and the Respondent Landlord since the 1st April, 2015, the Tribunal is not satisfied that the Appellant Tenant took all reasonable steps under s. 77 to resolve the issue prior to referring the matter to the Board. The Tribunal is further satisfied that the Appellant failed to take reasonable steps under s. 77 having regard to the fact the previous hearing was on the 1st April, 2015, and the fact that the Appellant Tenant’s subsequent application to the Board for dispute resolution was received by the Board on the 10th April, only 9 days later, and the absence of any evidence of any steps being taken during that time by the Appellant to contact the Respondent. Also, from the evidence given by the Respondent, it is clear and uncontroverted that the Respondent is in regular contact with his other tenants and the Appellant has not proved that the Respondent has failed to deal with the complaints that were made, or that he has ignored them or otherwise not taken appropriate steps to ensure that the other tenants comply with their obligations.
Finding 5: We find that neither the Appellant Tenant nor the Respondent Landlord have proved any entitlement to legal costs.
Reasons:
The Tribunal is satisfied that neither side has proved any entitlement to legal costs, in the absence of any exceptional circumstances as required by s. 5(4) of the Residential Tenancies Act 2004. While it is clear there were a number of matters in dispute that had previously been determined by the Tribunal on the 1st April, it is also clear that a number of other matters remained validly in dispute and required determination. It is also clear that the Respondent was in breach of obligations in at least two respects and that the Appellant’s application and appeal were not frivolous, trivial or vexatious, such that the Tribunal would have been entitled not to deal with the dispute under ss. 84 and 85 of the Act of 2004. Accordingly, where there were validly a number of issues before the Tribunal, where the Appellant proved a breach of obligations in respect of some of those issues, and where the Respondent proved compliance with his obligations in respect of other issues, the Tribunal is satisfied that there are no exceptional circumstances such as would justify an order for legal costs or expenses.
8. Determination:
Tribunal Reference TR0715-001275
In the matter of Mary Duniyva (Tenant) and Patrick Gibson (Landlord) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Respondent Landlord shall pay to the Applicant Tenant the sum of €500 within 14 days of the date of issue of the Order of the Board, being €300 damages in respect of the failure to provide the Applicant Tenant with the bank account details of the Respondent Landlord and €200 damages in respect of a breach of the obligation to allow the Applicant Tenant peaceful and exclusive occupation of the dwelling at 58 Grosvenor Square, Rathmines , Dublin 6.
2. The Applicant Tenant’s application is otherwise not upheld.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on the 22nd September, 2015.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 07 October 2015.
Signed:

Eoin Byrne Chairperson
For and on behalf of the Tribunal.

Fitzpatrick v Heaphy

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001745 / Case Ref No: 0316-24827
Appellant Landlord: Tony Fitzpatrick
Respondent Tenant: Georgina Heaphy
Address of Rented Dwelling: 20 Oakhill, Sweetfields, Youghal , Cork, P36R854
Tribunal: Helen-Claire O’Hanlon (Chairperson)
Gerard Murphy, Aidan Brennan
Venue: Committee Room 1, Cork City Council, City Hall,
Anglesea Street, Cork
Date & time of Hearing: 21 June 2016 at 2:30
Attendees: Gina Fitzpatrick (Appellant landlord’s
Representative)
In Attendance: DTI Wordwave Recording Technicians
1. Background:
On 10 March 2016 the 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 01 April 2016. The Adjudicator determined that:
The Notice of Termination served on the 8th November 2015 by the Applicant
Landlord on the Respondent Tenant, in respect of the tenancy of the dwelling at 20
Oakhill, Sweetfields, Youghal, Cork, is invalid.
On 27 April 2016 the landlord appealed to the Tribunal against the determination of the
adjudicator. The ground of the appeal was Overholding. The appeal was approved by the
Board of the RTB on 28 April 2016 and the dispute was referred to the Tribunal.
The RTB constituted a Tenancy Tribunal and appointed Helen-Claire O’Hanlon, Gerard
Murphy and Aidan Brennan 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 24 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 21 June 2016 the Tribunal convened a hearing at Committee Room 1, Cork City
Council, City Hall, Anglesea Street, Cork.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None.
4. Procedure:
The Chairperson asked the party present, Ms Gina Fitzpatrick, to identify herself and to
identify in what capacity she was attending the Tribunal and she confirmed she was
attending on behalf of the Appellant Landlord. There was no attendance on behalf of the
Respondent Tenant. The Tribunal waited for a period of fifteen minutes before
commencing the hearing to afford the Tenant an opportunity to arrive. As the Tenant did
not arrive the Tribunal hearing proceeded in her absence. The Chairperson confirmed
with the party present that she had received the relevant papers from the RTB in relation
to the case and that she had received the RTB document entitled “Tribunal Procedures”.
The party confirmed that she had done so and it was confirmed that the document had
been read and understood. The Chairperson explained the procedure which would be
followed; that the Tribunal was a formal procedure but that it would be conducted in as
informal a manner as was possible. She also stated that the party must follow any
instructions given by the Chairperson.
The Chairperson explained that as this was the Landlord’s appeal his representative
would be invited to present his case. As there was no appearance by or on behalf of the
Respondent there would be no cross-examination on behalf of the Respondent Tenant.
The Chairperson said that in the interest of fairness and balance, members of the
Tribunal might ask questions from time to time, particularly given that the tenant was not
present. The Chairperson explained that following this, an opportunity would be given 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 party present that
knowingly providing false or misleading statements or information to the Tribunal was an
offence. It was explained 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. The party
giving evidence to the Tribunal was then sworn in.
5. Submissions of the Parties:
Evidence on behalf of the Appellant Landlord:
Evidence of Gina Fitzpatrick (Landlords representative)
The landlord’s representative claimed that she had close personal knowledge of the
tenancy and interactions with the Tenant. She outlined the submissions of the Appellant
and gave evidence in respect of the dispute. She stated that the tenancy commenced in
March 2005, although the exact date in March was unknown. She stated that the Tenant
had previously been a recipient of rent allowance and at some point the tenancy had
switched to the ambit of the RAS scheme. The parties entered into a written RAS
Tenancy Agreement on the 21st of November 2012 and she referred to a copy of same,
which had been submitted by the Appellant in advance of the Tribunal hearing. The
tenancy agreement does not specify a fixed term. The Appellant’s representative
confirmed that the rent payable to the Landlord each month is €600. She explained that
this is paid directly to the Landlord by the local authority and the Tenant makes a
contribution directly to the local authority. It was also clarified that at the commencement
of the tenancy the Tenant had paid a deposit of €600 to the Landlord, which is retained in
full by the Landlord.
The Landlord’s representative claimed that in 2015 the Landlord decided to sell the
dwelling and that he had been instructed that he must do so by his lending institution. To
that end, evidence was given that the Landlord served a Notice of Termination on the
Tenant by hand on the 8th of November 2015. At the time that the Notice was served she
stated that a conversation had taken place with the Tenant and claimed that it was fully
explained to the Tenant that the dwelling would have to be sold and that this would have
to occur as soon as possible after the termination date. It was envisaged that this would
occur within a period of three months as the lending institution was demanding immediate
sale. She outlined that the Tenant gave them to understand that there was no difficulty
with this and that she was looking at other options. The Landlord’s representative referred
to the notice which states that the termination date was the 28th of February 2016. She
claimed that in the course of discussions with the Tenant over the following months the
Tenant gave no indication that she did not intend to vacate on the termination date. In
fact, it was submitted that the Landlord and his wife understood from these conversations
that the Respondent was happy with this course as it opened other housing alternatives
to her which were more favourable. In conversations between the parties the Respondent
had undertaken to vacate by the 28th of February and they had relied upon those
assurances. The Appellant’s representative gave evidence that it had then been agreed
between the parties that the Tenant could remain in the dwelling for a few extra days
beyond the termination date as one of her children was being confirmed. She claimed
that they had accommodated the Respondent in that regard because they wished to
facilitate her.
She outlined that a copy of the Notice had also been served on a RAS/HAP co-ordinator
in Cork County Council, who accepted the Notice was valid and ceased rent payments
through the RAS/HAP scheme from the 29th of February 2016. It was clarified by the
Appellant’s representative that the rent payments had subsequently been reinstated
pending the determination of the dispute, and the arrears had been discharged, but that
the delay in itself had caused hardship.
The Landlord’s representative submitted that the Notice of Termination had been
prepared in accordance with all available official information and advice. She claimed that
efforts had been made at all times to be honest and accommodating to the Tenant and to
comply with landlord obligations. It was submitted that it was particularly unfair that the
legislation – and indeed the Notice of Termination itself – states that the tenant has 28
days in which to refer a dispute as to the validity of a notice, and yet in this instance,
where no such dispute was referred, it had been determined that the Tenant was entitled
to remain in the dwelling in circumstances where no issue had ever been raised by her
with regard to the validity of the Notice until after the 112 days’ notice had expired.
It was submitted that a significant loss had been incurred by the Landlord, firstly in the
missed rent payments, which had a knock-on effect on the mortgage payments, and
secondly in that the Landlord had been delayed in terms of selling the property for a
considerable period of time. It was submitted that the Landlord had acted in good faith,
had followed all official guidelines and complied with the law. The Landlord’s
representative outlined that they were particularly aggrieved that the Notice had been
deemed invalid on the basis of what, it was submitted, was only a technicality and she
submitted that the High Court decision which had been relied upon by the adjudicator
post-dated their Notice of Termination. She submitted that the provision in the Act which
referred to a technical slip should apply in this case and stated that leeway should be
given where the Landlord had been conscientious and honest in his dealings and the
Tenant had been afforded an extensive period of notice and a further extension of time by
agreement. The Landlord’s representative gave evidence that it was the intention to sell
the property immediately. She outlined that there is a formal agreement in place with an
agent for the purpose of sale.
Evidence of the Respondent Tenant:
The Respondent Tenant did not attend the hearing. The Tribunal took account of a written
submission on the RTB file.
6. Matters Agreed Between the Parties
None
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the evidence
presented to it and/or submitted to it by the parties, the Tribunal’s findings and reasons
therefor are set out hereunder.
Finding No.1: The Tribunal finds that the Notice of Termination served on 8th November
2015 is valid.
Reason: The tenancy commenced in March 2005 and the parties entered into a written
RAS Tenancy Agreement on the 21st of November 2012. The RAS Tenancy Agreement
is not for a fixed term.
The Landlord served a Notice of Termination on the Tenant by hand on the 8th of
November 2015. The Notice states that “This Notice of Termination is being served due
to the planned sale of the property.” The Notice states that the tenancy will terminate on
the 28th of February 2016.
In circumstances where the tenancy commenced in March 2005 (and as neither party
could recall the exact date this has been taken to be the 1st day of that month), the
Tenant acquired a Part 4 tenancy from the 1st of September 2005. Thereafter, she
enjoyed the benefit of consecutive further four-year Part 4 cycles from the 1st of March
2009 and the 1st of March 2013. At present she is three years and three months into a
further Part 4 tenancy. At the time that the Notice of Termination was served she was
midway through that cycle. For a period of six months from the conclusion of a Part 4
cycle a Landlord is entitled to terminate a tenancy without giving one of the reasons set
out in s.34 of the Act. While the Part 4 cycle is in operation, as in this case, a tenancy can
only be terminated for one of the reasons set out in the Table to s.34. At the time that the
Notice was served, pursuant to the Table at s.66 of the Act (prior to its amendment), the
notice period that applied to a tenancy of that duration, was 112 days.
The requirements of section 34(a) of the Act are that a Part 4 Tenancy can only be
terminated on one of the grounds set out in the Table to that section and that the Notice
of Termination must cite “as the reason for the termination the ground or grounds
concerned…” Ground 3 refers to an intention “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”, “within 3 months after the termination of
the tenancy”.
There is a 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 (section 62(1)(e) of the Act).
In that case it was 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 to sell the
premises. 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. In other words, while a definite sale may not need to be identified, the legislation
envisages more than a mere intention to sell, and requires a landlord to have as a matter
of fact, and to state, that he intends to bind himself to a sale within three months of
termination.
The Tribunal is satisfied, having heard the evidence adduced on behalf of the Appellant,
that there was such an intention on the part of the Landlord to bind himself to a sale
within three months of termination. While the decision in the case of Hennessey v PRTB
does state that there is a requirement that this intention be articulated in the notice, the
provisions of the Residential Tenancies Act 2004 have been amended by the insertion of
s.64A and that provision was not in force when the Tribunal made its determination in
respect of the appeal in the Hennessy case (the appeal in that case was heard by the
Tribunal on 27 May 2015.
Subsequent to the determination of the Tribunal in that case the Residential Tenancies
Amendment Act 2015 was enacted. That Act inserted a new provision at s.64A of the
principal Act which provides as follows:
“64A.On the hearing of a complaint under Part 6 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.”
This provision came into force on 8th January 2016 by means of Statutory Instrument No.
4 of 2016. Section 64A is directed to the Tribunal, or an adjudicator, when hearing a
complaint under Part 6 of the Act. As the hearing of the appeal in this case took place
following the commencement of this section, the Tribunal is required to have regard to the
provisions of s. 64A of the Act. Although the Tribunal takes into account the decision of
the High Court in Hennessy v. PRTB, there has been a material change in the law
relevant to the circumstances of this case by means of the enactment of s. 64A of the Act.
In Hennessy v. PRTB s. 64A had not been commenced before the determination of the
Tribunal in that case, which was made on 29 June 2015. Therefore in Hennessy v. PRTB
the High Court was not required to consider the effect of s. 64A of the Act. On the other
hand, the Tribunal in this case is required to consider the provisions of s. 64A of the Act,
as this appeal was heard following the commencement of that section.
The Tribunal is satisfied that in this case the omission of the specification that the sale
would occur within three months does not, of itself, invalidate the Notice of Termination.
While the Notice of Termination should have specified not only that the Appellant
intended to sell the dwelling, but that he intended to do so within three months, the
Tribunal is satisfied that the Notice of Termination was otherwise in compliance with the
provisions of the Act. The omission of the reference to “within three months” is not held to
be fatal to the Notice or to prejudice the Notice. In this regard, in the Hennessey case, the
Court emphasised that the omission of the reference to the three month statutory period
could be open to abuse in that if a tenant did not have sufficient indication of the intention
to sell within “the statutory period” (namely, within three months of the termination of the
tenancy) he/she might not be “watchful or mindful of the circumstances that might evolve
following the tenant quitting possession on foot of the notice”, and that there would be a
risk that the tenant would not be alert to the entitlement to seek redress under section 56
of the Act (damages for abuse of the section 34 procedure).
The Tribunal is satisfied that the Respondent was fully aware of the reason that her
tenancy was being terminated, namely that the Appellant wished to sell the dwelling
within three months, was in agreement that she would vacate, and had in fact given
assurances that she intended to vacate by a particular date
The Respondent had never raised any issue with regard to the validity of the Notice
during the entire 112 days’ notice afforded to her, although the Notice contained the
required information that any dispute in relation to the validity of the Notice must be
referred to the PRTB within 28 days. The omission of the words “within three months”, did
not prejudice the Respondent Tenant in any way, and she was aware from reading the
Notice of Termination that she could refer a complaint to the PRTB within 28 days of that
Notice being served.
There was evidence from the Appellant’s representative that the Respondent had
expressed herself satisfied to vacate the dwelling. In fact, in January 2016, the parties
had agreed upon a further variation to the termination date, as they were entitled to do
pursuant to s.69 of the Act. No issue was taken by the Respondent in relation to the
Notice of Termination, until after the period of notice had expired.
In all the circumstances, the Respondent has remained in the dwelling beyond the
termination date and has been overholding
8. Determination:
Tribunal Reference TR0416-001745
In the matter of Tony Fitzpatrick (Landlord) and Georgina Heaphy (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 8th November 2015 by the Appellant
Landlord on the Respondent Tenant, in respect of the tenancy of the dwelling at 20
Oakhill, Sweetfields, Youghal, Cork, 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 28 days of the date
ofissue of the Order;
3. The Respondent Tenant shall continue to pay rent at the rate of €600 a month or
proportionate part thereof at the rate of €19.73 a day unless lawfully varied, and
any other charges as set out in the terms of the tenancy agreement for each month
or part thereof, until such time as she vacates the above dwelling;
4. The Appellant Landlord shall refund the entire of the security deposit of €600 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.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
18 July 2016.
Signed:
Helen-Claire O’Hanlon Chairperson
For and on behalf of the Tribunal.

 

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0516-001790 / Case Ref No: 0316-25203
Applicant Tenant: Paulina Izykowska
Respondent Landlord: Kenneth Reilly
Address of Rented Dwelling: Flat 2, 67 Drumcondra Road Lower , Dublin 9,
D09XY05
Tribunal: Helen-Claire O’Hanlon (Chairperson)
Gerard Murphy, Anne Leech
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 08 August 2016 at 2:30
Attendees: DRIWordwave Recoding Technicians
Interpreter fromWordperfect Translations
In Attendance: Paulina Izykowska (Appellant Tenant)
Pauline Lumsden (Witness for Appellant Tenant)
Kenneth Reilly (Respondent Landlord)
1. Background:
On 30 March 2016 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to a Mediation
which took place on 05 May 2016. Agreement was not reached at mediation.
Subsequently the Tenant submitted an application for referral to Tribunal, which was
received on 31 May 2016. The grounds of the application related to Unlawful termination
of tenancy (Illegal eviction), Standard and maintenance of dwelling and Breach of
landlord obligations. The appeal was approved by the Board on 01 June 2016.
The RTB constituted a Tenancy Tribunal and appointed Helen-Claire O’Hanlon, Gerard
Murphy and Anne Leech 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”).
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 August 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:
Notice of Termination served on the 26th of May 2016. This was submitted by the
Appellant Tenant and the Respondent confirmed that he was not objecting to the Tribunal
receiving it.
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 them. It
was explained to the Tenant that clarification would be given by the Tribunal in respect of
anything she was unsure of as she expressed a concern that she might not have fully
understood everything given that English is not her first language. She indicated she was
happy to proceed and understood all that was outlined, with the assistance of the
interpreter. 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 Tenant’s application for referral she would
be invited to present her case first and that there would be an opportunity for crossexamination
by the Landlord. The Landlord would then be invited to present his case, and
then there would be an opportunity for cross-examination by the Tenant. 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 and the interpreter was also sworn in.
5. Submissions of the Parties:
Evidence of the Appellant Tenant:
The Tenant gave evidence that she moved into the dwelling in July 2014. She claimed
that it had been very dirty and there were lots of problems and defects from the outset.
She said that she moved in and remained in the dwelling out of necessity because she
had a baby and it was difficult to find accommodation where a landlord would allow a
child. Problems which she claimed she encountered were as follows: The carpet was
heavily stained and smelled very bad. There was a problem with the sink and the shower
head. The lights in the hall were not working. Two rings on the hob were not working and
furniture was broken. The Landlord had left a broken freezer in her dwelling, even though
it contained old defrosted meat and she had to clean it all out herself. The drawers of the
freezer were all broken. There was no radiator in the bedroom and the mattress was
heavily stained and caused her to have a skin reaction. Because the bedroom was
unheated and the window was draughty a problem of mould and mildew developed on
the walls. She accepted that the Landlord had given her a heater to put in there but stated
that it was just a portable, plug in electric heater and caused a huge increase in her
electricity bill. She claimed that she started sleeping in the living room together with her
child but then there was an incident when a leak in a flat overhead caused part of the
ceiling to collapse on her head in the night. She claimed that she went to hospital in an
ambulance but could not stay there to be treated because she had nobody to look after
the child. She claimed that the Landlord was unsympathetic and aggressive when she
informed him of this and that it took him a week to repair the ceiling fully, although she
accepted he did call around to the dwelling to look at the ceiling straight away when it
happened, she also said he went away then for a few hours and came back later. There
is still discoloration from water damage on the walls. She claimed that she asked him to
repair the windows because they were draughty but that all he did was apply some sort of
sealant and he also nailed a window permanently closed. She claimed that when she
pointed out the mould and mildew to her he simply wiped some of it off with her toilet
bleach but did not address the cause.
The Tenant gave evidence that whenever she requested that the Landlord repair
something it would take a very long time and sometimes he would come and assure her
he would do something and then he would disappear for hours and she would be left
waiting for him to come back. In addition to this, she said any repairs carried out were
substandard and that the Landlord did the bare minimum to address her complaints. For
example, she said that she asked for a new shower head and he gave her the shower
head from another flat in the building and put her old (defective) shower head into that
flat. She claimed that the communal areas of the building were extremely dirty and untidy,
that electric meters had been left exposed in the hall by the removal of a panel which was
only replaced when the RTB hearing was pending. Similarly, she claimed that she asked
many times for the carpet and mattress in her dwelling to be replaced because they were
unclean, unhygienic and foul smelling and that these items were only replaced when the
RTB hearing was pending. She claimed that the Landlord came into her dwelling without
her consent when she was on holidays and put down wood panelling on the floor but it
had not been done properly, there were gaps between the panels and the dwelling had
been left extremely dirty and dusty as a result.
The Tenant outlined that there was a serious problem with mice and rats in the building.
She had seen mice in the bedroom of her dwelling and had seen rats in the hall and
corridor. She claimed this was because other tenants in the building were leaving sacks
of refuse in the hallways. She had raised this with the Landlord numerous times but he
had not brought in exterminators as she had requested. Instead he had scattered rat
poison behind and under the freezer and under the skirting in her dwelling. Traps had
been placed in the hallway right outside her flat door. The box of rat poison had been left
in her dwelling and this created a hazard for her child, in addition to the fact that it had not
resolved the infestation. She claimed that the Landlord had put up notices for the
occupants of the building in respect of how the refuse should be managed and when bins
were collected but this was only recently, and again only after the dispute had been
referred to the RTB.
In respect of the notice of rent increase, she outlined that she wished to remain in the
dwelling and that she had a conversation with the Landlord in the corridor one day and he
proposed an increase to €860 per month, which she agreed to pay. The Tenant gave
evidence that it came as a shock to her then to receive a notice of rent increase stating
that the rent would be increased to €960 per month. The Tenant stated that she would be
willing to pay €860 per month but only if very substantial repair works were done to
improve her living conditions. The Tenant submitted that the market rent for the dwelling
would be in or around that figure if the problems were fully addressed. She did not accept
that €960 was the market rent for the dwelling. She claimed that she had made multiple
complaints to the Landlord prior to referring the dispute to the RTB.
In respect of the Notices of Termination, the Tenant said that it was unfair that the
Landlord simply sought to terminate her tenancy because she had complained about the
condition of the dwelling. She did not accept that the notices were valid.
The Tenant submitted that she simply wishes to remain in the dwelling and for the repairs
to be done to a sufficient standard so that it is suitable for herself and her child to live
there.
Evidence of Pauline Lumsden:
This witness gave evidence that she has been in the dwelling lots of times with the
Tenant. She was there at the start of the tenancy and although there were painters there
they were doing a very careless job. She gave evidence that there was a persistent smell
of mould and damp in the dwelling and that it was in deplorable condition.
Evidence of the Respondent Landlord:
The Landlord claimed that the Tenant never made any complaints to him until he
mentioned an increase in the rent around March 2016. Apart from small maintenance
issues, which he said he had fixed, he claimed that there was a good relationship
between them and there was no suggestion that there was a problem with the dwelling
apart from minor repairs from time-to-time to which he attended. The Landlord claimed
that he had done the following in respect of the issues raised by the Tenant: He had fixed
the washers in the sink to resolve the leaking tap; he had provided a heater for the
bedroom which she then refused to use because she did not want to spend money on
heating; he had re-sealed the windows to prevent draughts and he categorically denied
that he had nailed any windows shut. He had constantly done bits and pieces in the
dwelling in response to her requests but he did not accept that many of the problems
were his responsibility. He accepted that part of the ceiling in the living room had
collapsed but he claimed that this was due to a burst pipe and could not be foreseen. He
had repaired the ceiling immediately afterwards but had to let it dry out for one week
before repainting it and any damp staining on the walls was residual. He said he had to
leave for a few hours on the day the ceiling had collapsed in order to get materials to
carry out the repair.
The Landlord accepted that there was a problem with rodents but stated that it was
previous tenants in another flat who were the main cause of the problem. He claimed that
they had been leaving bags of refuse out in the corridor. He outlined that he had regularly
put up notices about putting the proper waste into the proper bins and in fact sometimes
sorted the bins himself when he was there. That problem went on intermittently for
several months off and on but that some of the tenants who were causing those problems
had now moved out. He claimed that the area would be problematic for rats anyway
because it is close to the canal. He claimed that he had done all he could to deal with the
infestation, including buying rat poison from the Builders’ Providers and putting it down in
the building and putting in baited enclosed pipes for that purpose. He claimed that he had
put poison down under the skirting board in the Tenant’s kitchen and also in behind the
fridge where they would not be within reach of the child. He had left the box of poison in
the Tenant’s dwelling at her request.
In relation to the carpet, he stated that it had been cleaned prior to her tenancy and that it
would be economically unfeasible to replace carpets between each tenancy. However, he
had since replaced the carpet with laminate flooring in order to improve relations between
them. He had obtained her permission to enter the dwelling to do so while she was away.
The Landlord stated that he always got her permission to enter the dwelling.
The Landlord claimed that before renting any unit he makes sure everything is working.
He claimed that the hobs on the cooker are all working and he checked them himself in
the last couple of weeks. The fridge has an ice-box and that is working. He claimed that in
fact the under counter freezer is working, it is only the drawers that are broken. He was
willing to take that freezer away at the start of the tenancy but the Tenant asked him to
leave it there because otherwise there would be a gap under the counter. He denied that
there was any mould in the bedroom and stated that it is completely insulated. He stated
that the mildew staining on the bedsheets, the staining on the mattress and the detritus
on the floor were all due to the Tenant’s uncleanliness. He claimed that it is not his
responsibility to keep the dwelling clean. He outlined that he has many overheads and
many rental units and would not be able to afford professional exterminators. In relation to
the electricity meters, he stated that the cover had only been removed temporarily while
some work was being done and it had now been replaced. In relation to the communal
areas and the outdoors, he said that those were not part of the Tenant’s dwelling and did
not create any problem for her. The crack in the ceiling was only in the hallway, the carpet
in the hallway just needed to be vacuumed, which he did himself on occasion, and the
shopping trolley and rubbish in the back yard had been left there by the previous
troublesome tenants and had now been removed.
The Landlord stated that there had been an inspection by Dublin City Council a couple of
years ago and that there had only been a few small issues identified that needed
improvement. However, he accepted that the dwelling needs to be brought up to current
standard and needs some modernisation such as the installation of vents, rewiring,
replastering and the installation of a fire alarm. The rewiring in particular would require
going into the walls and it would not be possible for those works to be done while the
Tenant is residing there. He claimed that he has done up other flats in the building
individually while they were vacant over the Summer. In response to a question from the
Tribunal as to whether he could offer another unit in the building to the Tenant while the
works were being carried out in her dwelling he stated that there was no other unit
suitable for the Tenant, that the other units are all two-bedroom and would be too
expensive for her.
The Landlord said he was shocked by the condition of the Tenant’s dwelling when he
went in to replace the floor. He had taken photographs of toys strewn around the floor
and crumbs under the cushions of the couch while he was there. He claimed that it was
very untidy and that part of the problem was how the dwelling was being maintained by
the Tenant. He referred to the photographs submitted by the Tenant and said the white
marks on the floor were not rodent droppings, but were rice. He submitted her
photographs were staged.
In respect of the notice of rent increase, the Landlord claimed that he gave the tenant the
90 days notice required and that he was entitled to raise the rent. He submitted that the
value of all rental dwellings had increased in the area and that he had to increase the rent
because his own financial circumstances had changed. He also said that as he had done
works to the dwelling and fixed the matters raised by the Tenant, he felt he could increase
the rent. He claimed that the new rent sought is still below market rent in the area. He
said that he did not have have proof of comparable market rents for the area as he said
he did not realise this was necessary. He denied that the parties had agreed upon a
figure of €860 per month. He had simply informed the Tenant that the rent would be
increasing and that he would send her a notice.
The Landlord claimed that he feels the property is unsuitable for a tenant with a child and
stated that he had been asking the Tenant for over a year to move out. He stated that he
had only ever agreed she could rent the dwelling for a year and now that the child was
bigger he felt it was unsafe as it is right on a main road. He claimed that she had never
taken any steps to find anywhere else to live even though she knew she could not stay
there. He claimed that although he had given her a rent increase notice and gave her the
full 90 days notice required she still had not made any effort to find anywhere else to live.
He also claimed the Tenant was in arrears of rent as she had not paid the new, increased
rent stated in the notice of rent review. He confirmed that she had always regularly paid
and continued to pay the rent of €800.00 per month.
In relation to the Notices of Termination, he stated that he needed to bring the dwelling up
to standard and he had served the Notices because the Tenant could not stay there while
he was doing the works. He accepted there had been some wording missing from the first
notice but submitted that he is relying on the second one dated 26th May 2016. He
outlined that he would be doing much of the works himself, through his company, but
would be relying on other tradesmen such as the electrician and the fire-alarm installers
to carry out works as well. He said he could not give a definite time frame for when the
works would be carried out or for how long.
6. Matters Agreed Between the Parties
• The tenancy commenced on the 8th of July 2014.
• The Tenant remains in occupation.
• Under the original terms of the tenancy agreement the rent payable to the Landlord by
the Tenant each month is €800.
• The Landlord is seeking a rent increase to €960 per month with effect from 8th of June
2016.
• The Landlord retains a security deposit of €800 which was paid by the Tenant at the
commencement of the tenancy.
• The Landlord served a notice of rent increase on the Tenant on the 16th of March 2016.
• The Landlord served a Notice of Termination on the Tenant on the 19th of May 2016
and giving a termination date of the 19th of August 2016. That Notice of Termination cites
refurbishment as the reason for termination.
• The Landlord served a second Notice of Termination on the Tenant on the 26th of May
2016 giving a termination date of the 31st of August 2016. That Notice of Termination
also cites refurbishment as the reason for termination.
7. Findings and Reasons:
Having considered all of the documentation before it and having considered the issues
raised and the evidence and submissions of the parties, the Tribunal’s findings and
reasons therefor are set out hereunder.
Finding No 1: The Tribunal finds that the notice of rent review dated the 16th of March
2016 was invalid.
Reason: Pursuant to s.20 of the Residential Tenancies Act (as amended) a Landlord is
obliged to give 90 days notice of a rent increase. The Landlord confirmed that he served
a notice of rent increase on the tenant on the 16th of March 2016 seeking an increase
from €800 per month to €960 per month. That notice states that “I hereby give you 90
day’s notice of rent increase”. However it further states that the rent increase shall take
effect from the 8th of June 2016. That is in fact only 84 days from the date of service of
the Notice, and the Notice is thereby deemed to be invalid. In addition, the amendments
to s.20 of the Act, which commenced in December 2015 provide that a review of the rent
in respect of a tenancy may not occur more frequently than once in every period of 24
months and as the tenancy in question only commenced in July 2014 this period of 24
months had not expired in respect of this rent review at the date that the notice of rent
increase was served. The Tribunal notes further that neither party submitted any
evidence of the rents being obtained for comparative properties of equivalent size, type,
character and location. In the circumstances the Tribunal were not in a position to
determine what the market rent of the dwelling might be.
Finding No. 2: The Tribunal finds that the Notice of Termination served on the 19th of
May 2016 is invalid.
Reason:
In relation to the Notice of Termination dated the 19th of May 2016, the Tribunal noted
that the Landlord confirmed in his evidence that he had served a subsequent notice on
the Tenant because he realised that the first notice did not contain the proper wording.
S.62 of the Act sets out what must be contained in a Notice of Termination in order for it
to be valid, namely that it must be in writing, specify the date of service, state the reason
for termination, be in a prescribed form (if any), state the date of termination, that the
Tenant has the whole 24 hours of the termination date to vacate, state that any dispute as
to the validity of the notice or the entitlement of the landlord to serve it must be referred to
the PRTB within 28 days, and be signed by the landlord or their agent. As the Landlord
quite correctly acknowledged, that notice does not contain several of the requisite
elements set out in s.62 of the Act and is therefore invalid.
Finding No. 3: The Tribunal finds that the Notice of Termination served on the 26th of
May 2016 Is invalid.
Reason:
In relation to the Notice of Termination dated the 26th of May 2016, it was agreed
between the parties that the Landlord served that Notice of Termination on the Tenant
after the initial dispute had been referred to the RTB. That Notice (as with the first notice)
states that the tenancy is being terminated for the purpose of refurbishment. The
Landlord confirmed in his evidence that he was relying upon that notice. The Tenant
confirmed in her evidence that she wished the Tribunal to deal with the validity of that
Notice also and confirmed that it had been served prior to the date that she had submitted
her appeal to the RTB.
In circumstances where the tenancy commenced on the 8th of July 2014, the Tenant
acquired a Part 4 tenancy from the 8th of January 2015. Thereafter, for the remainder of
of the four-year Part 4 cycle, her tenancy could only be terminated for one of the reasons
set out in s.34. Those reasons and the required declarations which much accompany
them were substantially amended by the Residential Tenancies (Amendment) Act 2015.
At the time that the Notice was served, pursuant to the Table at s.66 of the 2004 Act the
notice period that applied to a tenancy of that duration (namely over one year but less
than two years) was 42 days and the notice does give a period in excess of that. The
notice contains the requisite elements set out in s.62 of the Act, however, although it
states that the reason for termination is that the Landlord requires the property for
refurbishment purposes and also sets out the nature of the refurbishment works, it does
not contain all the information required by s.35(9)(b) of the Act, which was inserted by the
Residential Tenancies (Amendment) Act 2015 and which commenced from the 9th of
May 2016. The section provides that where a tenancy is being terminated for the purpose
of refurbishment and the works do not require planning permission, the notice must
specify: (i) the name of the contractor, if any, employed to carry out the intended works,
and (ii) the dates on which the intended works are to be carried out and the proposed
duration of the period in which those works are to be carried out. As the Notice of
Termination of the 26th of May 2016 does not contain all this information it is held to be
invalid.
In all the circumstances, the Tenant is not obliged to vacate the dwelling on the
termination date specified in the notice, being the 31st of August 2016.
Finding No 4: The Tribunal finds that the Landlord is in breach of his obligations in
relation to the standard and maintenance of the dwelling. The Tribunals awards the
Tenant damages in the amount of €1,000.00 in respect of the consequences of this
breach.
Reason: The Tribunal accepts the evidence of the Tenant that inadequate steps were
taken to resolve maintenance issues which arose during the course of the tenancy. The
principle obligations of a Landlord are set out in s.12 of the Act, which provides among
other things, that a Landlord must carry out such repairs as may be necessary to ensure
that the structure, the interior of the dwelling and its fittings are all properly maintained
and comply with standards for rented houses. In particular a landlord must ensure that a
rented dwelling complies with the Housing (Standards For Rented Housing) Regulations
2008 (as amended).
It is noted that it was accepted by the Landlord that there was a problem with rats and
rodents in the building and that this arose mainly from problems with waste disposal. The
Landlord and the Tenant both gave evidence that other tenants were not putting their bins
out properly and that refuse was left where it should not be. The Landlord stated in his
evidence that he tried to address this problem on several occasions, by putting up notices
or speaking to the other tenants or sometimes sorting the bins himself. He also outlined
his use of poison throughout the dwelling and outside. The Tribunal finds that the steps
taken by the Landlord in this regard were inadequate. In circumstances where there was
a persistent problem, it does not suffice for a Landlord to abdicate his responsibilities by
attributing problems to other occupants of a dwelling. Pursuant to s.15 of the Act, a
Landlord has a duty to enforce the obligations of a Tenant where their actions could
potentially have an adverse effect on another, and that includes any other Tenant under
the tenancy. Even if the problem with rodents arose as a consequence of the failings of
other Tenants in the building, the Landlord was obliged to enforce the obligations of those
Tenants and his failure to do so gave rise to an ongoing and persistent problem for the
Appellant Tenant. The use of rat poison in the living area and the storage of poison in the
kitchen area of the Tenant’s dwelling was unsafe and irresponsible; even if the Tenant
had asked him to leave the rat poison in the dwelling he should not have done so. The
placing of traps around communal areas created a hazard. The problem should have
been addressed by means of professional exterminators and proper management of
waste disposal. It is noted from the photographs submitted and taken by the Tenant that
the outside yard area contains a great deal of detritus and building materials which have
clearly been there for a long time, given that much of it is overgrown with weeds. That is
likely also to have contributed to the problem.
In addition to the problem of infestation by rodents, the dwelling itself does not comply
with the Housing regulations in the following terms: A Landlord is obliged to provide a
fridge and freezer. This requirement is not satisfied by an ice-box in the fridge. Every
room intended to be inhabited by a Tenant must have a permanently fixed appliance
capable of providing effective heating. The bedroom did not have any such appliance and
this requirement is not met by the provision of a portable plug-in heater. In terms of refuse
facilities, a Landlord is required to provide suitable and adequate pest and vermin-proof
refuse storage facilities. A Landlord is also obliged to ensure that the dwelling is in a
proper state of structural repair, which means essentially sound, with roof, floors, ceiling,
walls and stairs in good repair and not subject to serious dampness or liable to collapse
because they are rotted or otherwise defective. The photographs submitted and taken by
the Tenant show a significant crack in the ceiling on the underside of the stairs in the hall
(p. 59 and p.66). Gardens and common areas should be maintained in good condition
and repair and it is apparent from the photographs (p.48 and p.49) that this was not the
case.
The failure to adequately resolve the issues, in particular the inadequate heating in the
bedroom, which is likely to have caused the mildew staining on the walls, the rodents and
the unsanitary conditions led to a significant disturbance of the Tenant’s enjoyment of her
dwelling. While it is accepted that the Landlord took steps to fix some things as they
broke and that he has taken steps to improve conditions in recent times, the steps which
have been taken were initially inadequate and more significant steps taken, such as
laying the timber floors, were done only after the dispute was referred to the RTB. In
general it was apparent that the Landlord attempted to deal with issues with the minimum
cost and expenditure and this resulted in inadequate conditions persisting. The Landlord
has not demonstrated with sufficient evidence that the matters which require repair could
not be carried out with the Tenant still living in the dwelling. Having considered all of the
above, the Tribunal determines that €1,000 is an appropriate level of damages for the
inconvenience, stress and discomfort to the Tenant over a period of time as a result of
that breach.
8. Determination:
Tribunal Reference TR0516-001790
In the matter of Paulina Izykowska (Tenant) and Kenneth Reilly (Landlord) the
Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
(1) The Notice of Rent Review served on the 16th of March 2016 by the Respondent
Landlord on the Appellant Tenant in respect of the tenancy of the dwelling at Flat 2, 67
Drumcondra Rd, Dublin 9, is invalid.
(2) The Notices of Termination served on the 19th of May 2016 and 26th of May 2016
by the Respondent Landlord on the Appellant Tenant, are invalid.
(3) The Respondent Landlord shall pay the sum of €1,000.00 to the Appellant Tenant
within 21 days of the date of issue of the Determination Order, being damages for
breach of landlord obligations in failing to property maintain the dwelling, in respect of
the above tenancy.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
10 August 2016.
Signed:
Helen-Claire O’Hanlon Chairperson
For and on behalf of the Tribunal.

 

Kelly v Coulton

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0616-001813 / Case Ref No: 0416-25607
Appellant Landlord: Vivienne Kelly
Respondent Tenants: Claire Kineen, Patrick Colton
Address of Rented Dwelling: 34 Rathvale Drive, Ayrefield , Dublin 13, D13H953
Tribunal: Aidan Brennan (Chairperson)
Peter Shanley, Anne Colley
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 20 July 2016 at 10:30
Attendees: Emilia Szalak (Appellant Landlord’s agent
/representative)
Sinead Rees (Appellant landlords
agent/representative)
Claire Kineen (Respondent Tenant)
Patrick Colton (Respondent Tenant)
In Attendance: RTB appointed stenographer
1. Background:
On 13 April 2016 the Landlord made an application to the Residential Tenancies Board
(the RTB) pursuant to Section 76 of the Residential Tenancies Act 2004 (the Act.) The
matter was referred to an Adjudication which took place on 20 May 2016. The Adjudicator
determined that:
1. The Applicant Tenant’s (sic) application alleging anti-social behaviour, in respect of
the tenancy of the dwelling at 34 Rathvale Drive, Ayrefield, Dublin 13, is not upheld;
2. The Notice of Termination served on 15th March 2016 by the Applicant Landlord
on the Respondent Tenants in respect of the tenancy of the above dwelling is invalid;
3. The Respondent Tenants shall pay the total sum of €1,031.20 to the Applicant
Landlord, within 35 days of the date of issue of the Order. This sum represents rent
arrears of €631.20, in addition to damages of €400 for breach of Section 16(a) of the
Residential Tenancies Act, 2004, in respect of the tenancy of the above dwelling.
On 14 June 2016 the landlord appealed to the Tribunal against the determination of the
adjudicator. The grounds of the appeal were Anti-social behaviour and Breach of tenants’
obligations. This appeal was approved by the Board of the RTB on 15 June 2016 and the
dispute was referred to the Tribunal.
The RTB constituted a Tenancy Tribunal and appointed Peter Shanley, Anne Colley and
Aidan Brennan as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Aidan Brennan to be the chairperson of the Tribunal (the Chairperson).
On 20 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 20 July 2016 the Tribunal convened a hearing at the Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
The Chairperson gave the tenants a copy of a document from the landlord that had been
received by the RTB the previous day. The document was a statement/letter from a
neighbouring tenant. The tenants read the document and said they were happy to go
ahead with its submission to the Tribunal.
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the parties
that they had received the relevant papers from the Residential Tenancies Board (the
RTB) in relation to the case and that they had received the RTB document titled “Tribunal
Procedures”.
The Chairperson explained the procedure which would be followed; that while the
Tribunal was a formal procedure it would be held in as informal a manner as was
possible; that the appellant landlord’s representative would be invited to present her 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 landlord’s representative.
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 advised the parties that as a result of the Hearing, the Board of the RTB
would make a Determination Order which would be issued to the parties and could be
appealed to the High Court on a point of law only.
The parties intending to give evidence were affirmed / sworn in.
5. Submissions of the Parties:
Emilia Szalak Appellant Landlord’s agent and representative
Ms. Szalak presented the landlord’s case. She referred to the documents on the case file
and said that complaints had been received from neighbours since early in the New Year
about anti-social behaviour on the part of the tenants. She said that some neighbours are
afraid to complain. Despite letters and telephone calls to the tenants the anti-social
behaviour persists. Late payment of rent gave rise to an earlier warning letter but that
situation was resolved. Rent has not been paid this month (July) or in June 2016 and this
is causing difficulties for the landlord in meeting her financial commitments. A 14 day
notice concerning rent arrears was served on the tenants on the 10th June 2016 and as
payment was not forthcoming a 28 day Notice of Termination was served on 24 June
2016 with a termination date of 22 July 2016. As the notice period in this Notice of
Termination had not expired prior to the hearing date it was not before the Tribunal, and
the agent confirmed that the landlord is relying on the 7 day Notice of Termination served
on the tenants on 15 March 2016 and is seeking arrears of rent for two months in the sum
of €2400.00.
Evidence of Claire Kineen and Patrick Colton
The tenant Claire Kineen gave evidence that the neighbouring tenants are not afraid of
her as they speak to her every day, and one of them bought her brother’s motor bike. Mr.
Colton stated that the Ukrainian occupant of the flat upstairs is a very big man and could
not be afraid of them. A letter from the landlord’s agent dated 8 December 2015 re antisocial
behaviour was recited by Patrick Colton. He contrasted this letter with the
landlord’s agent’s evidence that complaints had started in the New Year. Further to this it
was stated that they were not in the dwelling over the Christmas period so could not have
had noisy parties during that time. Evidence was given by Ms Kineen that her sister had
stayed with her for 7-8 days only but she had been told by the agent that she could not
have people staying. The tenants admit the arrears and stated that they are actually
holding the rent, but are not paying it until such time as certain items are fixed, and will
not leave the landlord without rent at the end of the tenancy. Evidence was given by Ms
Kineen that around a month ago, at about 7 in the evening the landlord’s agent came to
the dwelling, with her husband, unannounced, and talked to her about the rent in an
aggressive tone. She stated that the husband stood at the car looking in, with an
aggressive look on his face.
The landlord’s agent again gave evidence, about the occasion she called, and said it was
just about the rent arrears. She stated that she just wanted to find out what the situation
was.
She also outlined the action that had been taken in relation to the standard and
maintenance of the dwelling. The agent then gave evidence that the dwelling was not in
the best condition when the tenants first moved in. They had been trying to let it for some
time. The tenants viewed the dwelling a couple of times before taking it. The new
windows and floors were put in prior to them moving in. The fridge was actually working,
but did not look great, she acknowledged, but due to the amount and cost of work done
by the landlord, she needed to delay replacement for a while, but it was later replaced.
The painting of the dwelling by the tenants was without consent, but the landlord was very
happy with the result and indicated that she might be willing to refund some money to the
tenants for doing the painting, but wanted to see how the rent payments went.
In relation to a complaint about a leak from the upstairs dwelling causing a light bulb to
shatter, she said that when she called in to see what had happened the TV was on so
loud that she had to ask for it to be turned down so they could talk. There was difficulty in
getting access to the flat above to fix the leak but this was done about a week later.
The tenants stated that the landlord’s agent was impressed with the condition of the
dwelling and the way it was kept by the tenants when they visited about the blown light
bulb. The tenant had complained to the Tribunal that she felt the agent wanted to remove
evidence of the faulty bulb/light by taking the bulb away, but the agent said they only
wanted to take the bulb away to remove the rubbish, and had no ulterior motive.
Patrick Colton said the owner of the flat upstairs, where the leak had occurred, told him to
say to his daughter to stop throwing baby wipes, which she doesn’t use, down the
sewers. He stated that he believes the owner of that dwelling is very friendly with the
woman who has complained to the appellant landlord about the noise issue, and is the
Ukrainian’s landlord, and he feels he is complaining as a result of his closeness to these
individuals. In his closing statement he said they want to be able to stay in the dwelling
until they find somewhere more suitable. They reject the allegations of anti-social
behaviour.
6. Matters Agreed Between the Parties
Address: 34 Rathvale Drive, Ayrefield Park, Dublin 13
Rent: €1200.00 per month.
Deposit: €1200.00
Tenants: Claire Kineen and Patrick Colton
Landlord: Vivienne Kelly
Tenants in occupation: Yes
Rent arrears: €2400.00.
12 Month lease signed by the tenants on 4 September 2015
Keys for the dwelling given to the tenants on 7 September 2015
7. Findings and Reasons:
Finding 1
The tenancy commenced on the 7 September 2015.
Reasons:
Section 5 of the Act defines, inter alia, ‘‘tenant’’ as meaning the person for the time being
entitled to the occupation of a dwelling under a tenancy. It is accepted by the parties to
the dispute that while the lease agreement showing a commencement date of 4
September 2015 was signed by the parties, the keys to the dwelling were not handed
over to the tenants, due to delayed payment of the full deposit and first month’s rent, until
the 7 September 2015. Thus the tenants were not entitled to occupation of the dwelling
until the 7 September 2015.
Finding 2
The landlord’s complaint alleging anti-social behaviour, on the part of the tenants of the
dwelling at 34 Rathvale Drive, Ayrefield Park, Dublin 13, is not upheld and the Notice of
Termination, giving 7 days notice, by reason of anti-social behaviour, served on 15th
March 2016 by the landlord on the tenants in respect of the tenancy of the above dwelling
is invalid:
Reasons:
The tenancy commenced on the 7 September 2015 under a 12 month lease. Section
34(1) allows a landlord to terminate a fixed term tenancy for breach of tenant obligations,
provided that the landlord has notified the tenant of the breach and afforded a reasonable
opportunity to remedy the breach, and the tenant has failed to remedy the breach. If that
process has been observed, a landlord is entitled to serve a notice of termination on the
tenant giving 7 days notice if the tenancy is being terminated by reason of behaviour
falling within paragraph (a) or (b) of the definition of “behave in a way that is anti-social” in
section 17(1) which 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 behaviour that is threatening to the fabric of the dwelling or the property containing the
dwelling.(section 67(2) a ii)
In order to be valid, a Notice of Termination must comply with section 62 of the Act,
namely that it must: be in writing; be signed by the landlord or his or her authorised agent;
specify the date of service of it; be in such form (if any) as may be prescribed; if the
duration of the tenancy is a period of more than 6 months, state the reason for the
termination; specify the termination date, specify that the tenant has the whole of the 24
hours of the termination date to vacate possession; and state that any issue as to the
validity of the notice or the right of the landlord to serve it must be referred to the Board
within 28 days from the date of receipt of it.
The Tribunal had regard to the alleged breaches of tenant obligations and were not
satisfied that any of the purported breaches which the landlord complained of were
breaches of tenant obligations the nature of which would or could give rise to a Notice of
Termination with a 7 day period of notice. The Tribunal was not satisfied that there was
any evidence of threatening behaviour on the part of the tenants.
In addition, the Notice of Termination is invalid as it does not comply with the provisions
of section 62 of the Act because it does not contain the requisite elements set out in that
section in that it does not clearly specify the termination date; does not specify that the
tenant has the whole of the 24 hours of the termination date to vacate possession; and
does not 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.
Finding 3
The Respondent Tenants owe the landlord rent arrears in the total sum of €2952.30. This
sum represents arrears of rent due for the two months of June and July 2016 at €1200.00
per month plus €552.30 for the 14 days from 7 July 2016 to the date of the Hearing
(calculated at the daily rate of €39.45). The Tribunal awards damages of €200.00 to the
landlord for the consequences of the tenants’ breach of obligations to pay rent on the
date it falls due in accordance with Section 16(a) of the Residential Tenancies Act, 2004.
Reasons:
The rent arrears are admitted by the tenants and the Tribunal accepts the landlord’s
agent’s evidence that the non payment of rent on the due date has caused loss, distress
and inconvenience to the landlord.
8. Determination:
Tribunal Reference TR0616-001813
In the matter of Claire Kineen, Patrick Colton (Tenant) and Vivienne Kelly
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The Notice of Termination served on 15th March 2016 by the Appellant Landlord on
the Respondent Tenants in respect of the tenancy of the above dwelling is invalid:
2. The Appellant Landlord’s complaint alleging anti-social behaviour, on the part of the
tenants of the dwelling at 34 Rathvale Drive, Ayrefield Park, Dublin 13, is not upheld:
3. The Respondent Tenants shall pay the total sum of €3152.30 to the Appellant
Landlord, within 14 days of the date of issue of the Determination Order by the Board
of the RTB. This sum represents rent arrears of €2952.00 calculated to the date of the
Hearing, in addition to damages of €200.00 for the consequences of the tenants’
breach of obligations to pay rent on the date it falls due in accordance with Section
16(a) of the Residential Tenancies Act, 2004, in respect of the tenancy of the above
dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
29 July 2016.
Signed:
Aidan Brennan Chairperson
For and on behalf of the Tribunal.

MacGuiness v Gallagher

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0516-001773 / Case Ref No: 0316-24922
Appellant Tenant: John Declan MacGuinness
Respondent Landlord: Gregory Gallagher
Address of Rented Dwelling: 3 The Mews, Saint Patricks Road, Dalkey , Dublin,
A96FK00
Tribunal: Dervla Quinn (Chairperson)
Helen-Claire O’Hanlon, Gerard Murphy
Venue: Tribunal Room, RTB, Floor 2, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 09 August 2016 at 10:30
Attendees: John Declan MacGuinness (Appellant Tenant)
Gregory Gallagher (Respondent Landlord)
In Attendance: Stenographer
1. Background:
On 15 March 2016 the Tenant made an application to the Residential Tenancies Board
(“the RTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication
which took place on 20 April 2016. The Adjudicator determined that:
1. The Notice of Termination served on the 19th February 2016 by the Respondent
Landlord on the Applicant Tenant, in respect of the tenancy of the dwelling at No. 3
The Mews, St. Patrick’s Road, Dalkey, Co. Dublin, is valid.
2. The Applicant Tenant and any persons residing in the above dwelling shall vacate
and give up possession of the above dwelling within 14 days of the issue of the
Determination Order.
3. The Applicant Tenant shall pay the sum of €6,078.48 to the Respondent Landlord,
in 6 consecutive monthly payments of €1000, on the 28th day of each month,
followed by one payment of €78.48 in the immediately succeeding month,
commencing the next month after the issue of the Determination Order, being rent
arrears in the sum of €6,078.48 plus €500 damages for breach of Landlord
Obligations under s12(1)(a) of the Residential Tenancies Act 2004, less €500
damages for breach of Tenant Obligations under s16(a) of the Residential Tenancies
Act 2004, in respect of the tenancy of the dwelling at No. 3 The Mews, St. Patrick’s
Road, Dalkey, Co. Dublin.
4. The enforcement of the Order for such payment shall be deferred and the total
sum owing reduced by the cumulative sum paid in the monthly instalments of €1000
made by the Applicant Tenant to the Respondent Landlord on each due date until the
sum of €6,078.48 has been paid in full;
5. For the avoidance of doubt any default in the payment of the monthly instalments
of €1000 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
Respondent Landlord.
6. The Applicant Tenant shall pay any rent outstanding from the 20th April 2016, at
the rate of €1050 per month and/or €34.52 per day, unless lawfully varied, and any
other charges as set out in the terms of the tenancy agreement for each month/day
or part thereof, until such time as he vacates the above dwelling.
Subsequently the following appeal was received from the Tenant on 17 May 2016. The
grounds of the appeal are Unlawful termination of tenancy (Illegal eviction), Invalid Notice
of termination, Breach of landlord obligations and Anti-social behaviour. The appeal was
approved by the Board on 18 May 2016
The RTB constituted a Tenancy Tribunal and appointed Dervla Quinn, Helen-Claire
O’Hanlon, Gerard Murphy 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”).
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 August 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:
The Tenant, with the consent of the Landlord, submitted the following documents :
Letter from Dr Mark Murphy re Declan Mac Guinness.
Correspondence between the offices of the RTB and John Declan Mac Guinness.
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 party who
referred the dispute to the Tribunal, the Appellant would be invited to present his case
first; that there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present his case, and that there would be an
opportunity for cross-examination by the Appellant. The Chairperson explained that the
Tribunal would ask question of the Parties during their evidence.
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.
The Chairperson then informed the Parties that the Tribunal would only concern itself with
matters in dispute in relation to the tenancy that occurred after 27 October 2015. On this
date a tribunal took place, which tribunal dealt with matters up to that date. The tribunal
ordered the Appellant Tenant to pay to the Respondent Landlord the sum of €11,432.05
to cover rent arrears due for a period of 10 months and 27 days from November 2014 to
27 October 2015. The tribunals findings can not be revisited as to do so would be in
breach of the principle of Res Judicata, that the matter had already been dealt with by a
competent tribunal and could not be pursued further by the same parties.
5. Submissions of the Parties:
Tenant’s evidence.
The Tenant stated that the Landlord is a professional landlord. The Tenant had withdrawn
from a settlement reached at an earlier adjudication and the Tenant stated that it was
false and misleading for the settlement details to be included in this hearing.
The Tenant then outlined what had taken place between him and the Landlord on 19
February 2016. The Tenant stated that on this date the Landlord attended the Dwelling,
came to the door and put his foot in the door, attempted to give the Tenant the Notice of
Termination and also attempted to take a video. The Tenant stated that he refused to play
along and told the Landlord to place the notice in the letter box. The Tenant stated that
the Landlord placed the notice in the Tenant’s pocket. The Tenant stated that the
Landlord became enraged and assaulted the Tenant, The Tenant stated that the Landlord
removed the front door from the hinges. The Tenant pointed out the photograph that he
had submitted showing the door hinges. The Tenant stated that he then called the Gardai
who arrived over 3 and a half hours later. The Tenant pointed out that the Landlord had
not denied any of this in his submissions.
The Landlord had accused the Tenant of assaulting him. In response to this the Tenant
submitted a letter from his doctor in which the doctor stated that the Tenant had suffered
a stroke in 2014 which had resulted in injuries to the Tenant’s right upper limb and right
shoulder sprain. The Tenant stated that he had also previously suffered a butterfly
fracture and could not have fought his way out of a paper bag. The Tenant alleged that
the Landlord had waged a campaign of fear against him.
The Tenant stated that he had been informed by the Gardai by phone on the day of the
adjudication that there would not be a prosecution following this incident. The Tenant felt
that this was because there were no witnesses to the assault and further that it would be
false and misleading to take the lack of prosecution as evidence that no assault had
taken place.
The Tribunal then questioned the Tenant on the contents of the Notice of Termination.
The Tenant stated that the notice may on the face of it be legitimate but that the
circumstances surrounding the delivery of the notice were corrupted, compromised and
contaminated. The Tenant asked can a notice be valid if the method of delivery disturbs a
tenant’s right to peaceful occupation. The Tenant stated that if this was the finding of the
Tribunal it would send a message to every landlord that they can do what they like.
The Tribunal then questioned the Tenant on the 14 day demand letter. The Tenant
acknowledged that no rent had been paid since 27 October 2015. The Tenant stated that
the welfare officer told him that rent supplements are not paid whilst a dispute is ongoing.
The Tenant felt that the Landlord should have been aware of this as part of his risk
management. The Tenant felt that the method of delivery of the notice of termination had
also contaminated the validity of the 14 day demand letter because it was a continuous
process . If the Landlord had put the notice in the letter box the Tenant would not have
taken a case to the RTB. The Tenant stated that the Landlord had waged a campaign of
fear against the Tenant and the Tenant’s son who was preparing for his leaving certificate
exams at the time.
The Tenant then went on to state that the copy of the Tribunal decision of 27 October
2015 that he received with the Tribunal papers was missing a page. It took him two days
to read through the papers and sort this out. The Tenant felt that the case file provided by
the RTB was false and misleading.
The Tenant stated that he had not understood the last tribunal report which was overly
legalese and as he had not retained the help of senior counsel it was very hard for him to
comprehend the report.
Landlords’ Evidence.
The Landlord gave his own account of what had taken place on 19 February 2016. He
confirmed taking the door of the hinges. The Landlord stated that the door was hung on
easy lock hinges which made the taking of the door down a matter of just lifting the door
up off the hinges. He stated that he had done this to stop the Tenant closing the door
before he could serve him with the Notice of Termination. The Landlord denied assaulting
the Tenant. The Dwelling was overlooked by 5 to 6 other houses and there was no way
the Landlord could have assaulted the Tenant as alleged without someone seeing him do
it. The Landlord confirmed that it took the Garda over three hours to arrive. When they did
they spoke to both parties. The Tenant agreed to take the notice from the Garda after
which the Landlord replaced the door. The Landlord stated that he had not received rent
from the Tenant since November 2014. During this time he had to keep up the mortgage
payments out of his net income and pay property tax.
The Landlord outlined other issues in relation to the condition of the Dwelling such as the
build-up of rubbish, the poor maintenance of the bins and the growth of weeds. The
Landlord also stated that the Tenant kept a dog at the Dwelling in breach of the terms of
the lease. The Tribunal noted that these issues had been raised at the tribunal in 27
October 2015 and declined to reconsider them.
6. Matters Agreed Between the Parties
– The name of the Dwelling is no 3 The Mews Patricks Road Dalkey Co Dublin.
– The Tenant has not paid rent since 27 October 2015.
– The rent due is €1,050 per month.
– The Tenant is still in occupation.
7. Findings and Reasons:
7.1. Finding – The Landlord is in breach of his obligations pursuant to section 12 (1)(a) of
the Act “to allow the tenant of the dwelling to enjoy peaceful and exclusive occupation of
the dwelling.” The Tenant is entitled to damages of €500 for the upset and discomfort that
he experienced as a result of this breach by the Landlord of his obligations.
Reasons. The Landlord acknowledged that on 19 February 2016 he attended the
Dwelling and removed the front door and did not put it back on for a period in excess of 3
hours,
7.2 Finding The Tenant is in breach of his duty pursuant to section 16 (a)(i) of the Act to
“pay to the landlord … the rent provided for under the tenancy … on the date it falls due
for payment”. The Landlord is entitled to damages of €500 for the losses and
inconvenience he has experienced as a result of this breach by the Tenant of his
obligations.
Reasons. The Tenant acknowledged that he has not paid rent to the Landlord since 27
October 2015. The Landlord gave evidence of the pressure he has been under to pay the
mortgage and other charges on the Dwelling.
7.3 Finding The Tenant owes the Landlord the sum of €9,864.24 arrears of rent being the
sum of €1050 per month from 27 October 2015, the date of the last tribunal hearing, to 9
August 2016 being the date of hearing. 9 month X €1050 = 9450 plus 12 days X €34.52=
€414.24.
Reason: The Tenant admitted to the Tribunal that he had failed to pay rent from 27
October 2015. The Tenant did not offer any explanation for this other than that there was
a dispute pending between him and the Landlord. However the pending dispute related to
the events that took place on 19 February 2016 and the service of the Notice of
Termination, The issue of rent arrears and the non-payment of rent had previously been
determined fully by the tribunal in October 2015. The Tenant is obliged to comply with the
Determination Order issued by that tribunal dated 24 November 2015.
7.4. Finding. The Notice of Termination served by the Landlord on the Tenant on 19
February 2016 is valid. The Applicant Tenant and any persons residing in the above
dwelling shall vacate and give up possession of the above dwelling within 14 days of the
issue of the Determination Order.
Reason. The Notice of Termination is in compliance with the requirements for tenancy
terminations as set out in Part 4 and Part 5 of the Act. The Tenant confirmed receiving
the notice on 19 February 2016. The Landlord’s behaviour in effecting service of the
notice breached the Tenant’s right to peaceful enjoyment but this does not act to
invalidate the Notice of Termination. It does entitle the Tenant to damages as awarded at
finding 7.1.
8. Determination:
Tribunal Reference TR0516-001773
In the matter of John Declan MacGuinness (Tenant) and Gregory Gallagher
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The Notice of Termination served on the 19th February 2016 by the Respondent
Landlord on the Appellant Tenant, in respect of the tenancy of the dwelling at No. 3
The Mews, St. Patrick’s Road, Dalkey, Co. Dublin, is valid.
2. The Appellant Tenant and any persons residing in the above dwelling shall vacate
and give up possession of the above dwelling within 14 days of the issue of the
Determination Order.
3.The Appellant Tenant shall pay the sum of €9,864.24 to the Respondent Landlord, in
9 consecutive monthly payments of €1000, on the 28th day of each month, followed by
one payment of €864.24 in the immediately succeeding month, commencing the next
month after the issue of the Determination Order, being rent arrears in the sum of
€9,864.24, plus a sum of €500 damages for breach of Tenant Obligations under s16(a)
of the Act 2004, less €500 for damages arising out of the breach of Landlord
Obligations under s12(1)(a) of the Act, in respect of the tenancy of the Dwelling at No.
3 The Mews, St. Patrick’s Road, Dalkey, Co. Dublin.
4. The enforcement of the Order for such payment shall be deferred and the total sum
owing reduced by the cumulative sum paid in the determined instalments made by the
Appellant Tenant to the Respondent Landlord on each due date until the sum of
€9,864.24 has been paid in full;
5. For the avoidance of doubt any default in the payment of the determined instalments
of
€1000 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
Respondent Landlord.
6. The Appellant Tenant shall pay any rent outstanding from the 9th August 2016, at
the rate of €1050 per month and/or €34.52 per day, unless lawfully varied, and any
other charges as set out in the terms of the tenancy agreement for each month/day or
part thereof, until such time as he vacates the above dwelling.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
11 August 2016.
Signed:
Dervla Quinn Chairperson
For and on behalf of the Tribunal.

McHugh v Lowry

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0215-001027 / Case Ref No: 0714-13373
Appellant Landlord: Frank McHugh
Respondent Tenant: Thomas Lowry
Address of Rented Dwelling: Flat No. 7, 41 Grosvenor Road, Rathmines , Dublin 6.
Tribunal: Finian Matthews (Chairperson)
Aidan Brennan, Thomas Reilly
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
Date & time of Hearing: 16 April 2015 at 10:30
Attendees:
Frank McHugh, Appellant, Landlord.
Thomas Lowry, Respondent, Tenant.
Karen McHugh, Representative, Landlord.
Peter McHugh, Representative, Landlord.
James Carroll, Witness, Landlord.
In Attendance:
Gwen Malone Stenographers.
1. Background:
On 28/07/2014 the Tenant made an application to the Private Residential Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred to an Adjudication which took place on 03/12/2014. The Adjudicator determined that:
1. The Notice of Termination served on the 27.08.14 in respect of the tenancy at the dwelling at Flat No.7, 41 Grosvenor Road, Rathmines, Dublin 6 is invalid.
2. The subsequent Notice of Termination handed in at the hearing of the dispute served after the above Notice of Termination in respect of the tenancy at the dwelling at Flat No. 7, 41 Grosvenor Road, Rathmines, Dublin 6 is also invalid.
3. The Applicant Tenant’s application under the grounds of standard and maintenance of the dwelling and breach of Landlord’s obligations is upheld.
4. The Respondent Landlord shall pay the sum of €10,500 to the Applicant Tenant, within 60 days of the date of issue of the Order, being €1500 in damages for each year or part thereof in which a breach of landlord obligations in failing to sufficiently maintain the tenancy of the dwelling at Flat No. 7, 41 Grosvenor Road, Rathmines, Dublin 6 occurred.
Subsequently the following appeals were received on 11/02/2015: Standard and maintenance of dwelling, Breach of tenant obligations, Unlawful termination of tenancy (Illegal eviction), Breach of landlord obligations, Anti-social behaviour. Approved by the Board on 23/02/2015.
The PRTB constituted a Tenancy Tribunal and appointed Finian Matthews, Aidan Brennan, Thomas Reilly 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 16/04/2015 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
PRTB File
3. Documents Submitted at the Hearing Included:
A letter dated 26 March 2015 from Greyhound Household was submitted at the Tribunal by the Respondent Tenant and shown to the Appellant Landlord, who had no objection to its being entered in evidence.
4. Procedure:
Opening the Tribunal the Chairperson stated that it had been constituted to hear an appeal by the Appellant Landlord, Frank McHugh against a determination made following an adjudication held on 3 December 2014 in the case of a dispute between the Landlord and the Respondent Tenant in respect of a tenancy at Flat No. 41 Grosvenor Road, Rathmines, Dublin 6. He introduced the members of the Tribunal to the parties.
He asked the Parties present and any witnesses to identify themselves and to state the capacity in which they were attending the Tribunal hearing. He confirmed with the Parties that they had received the relevant papers from the 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 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 Landlord’s representatives would be invited first to present his case, including the evidence of their witness; this would be followed by an opportunity for cross-examination by the Respondent Tenant; that the Respondent Tenant would then be invited to present his case, followed by an opportunity for cross-examination by the Appellant Landlord. He said that members of the Tribunal would ask questions of both Parties from time to time. He also directed that neither Party should interrupt the other when direct evidence was being given.
He also said that at the end of the hearing, both the Appellant Landlord and the Respondent Tenant would be given the opportunity 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 sworn in.
5. Submissions of the Parties:
Appellant Landlord’s Case:
Evidence of Karen McHugh:
Speaking on behalf of the Appellant Landlord, Ms. Karen McHugh stated that the Landlord accepted the Adjudicator’s first finding to the effect that a notice of termination issued to the Respondent Tenant on 27 August 2014 was invalid, because various things were not stated in it. She also accepted that a second notice handed in at the Adjudication hearing was invalid. She said that the landlord was relying on a third notice issued on 6 February 2015 following legal advice.
In relation to the maintenance of the dwelling she said that her father was a retired gentleman who attended the building on most days and took care of routine maintenance jobs in relation to the 8 bedsits in to which the dwelling was divided, with Mr. Carroll being called in for bigger jobs. She said her father, the Appellant Landlord, had an accident in April 2011, was in hospital for over a year, is now totally incapacitated and now lives with her. She said that before that she had collected rents at the house and attended to various matters when her father was away. She therefore took over the maintenance of the house, when things settled down after her father’s accident. She added that she was also a full-time worker, found it increasingly difficult to look after the house and a neighbouring house owned by her father; that she wanted to renovate the entire house instead of doing patch up jobs and that little by little she tried to get the various tenants to move out. She said she started that process by putting a notice on the in the hallway in June 2012 – this was the first indication to the tenants that were required to leave. She said that most of the tenants left without difficulty except for the Respondent Tenant and another tenant. She also said that another reason she was seeking to renovate the entire house was that after her father’s injury it had fallen into disrepair and she could no longer get insurance on the house. The idea was to try to obtain vacant possession so that the house could be renovated and it could then be insured.
Ms. McHugh said that the dwelling occupied by the Respondent Tenant was a one-roomed apartment with a kitchen at the top of the house with a separate bathroom not shared with any other tenant. She could not describe the condition of the dwelling in 2007 as she was not then living in Ireland, but she said that the tenant keeps the dwelling in impeccable condition. She added that between 2007 and the date the tenant was issued with a notice of termination in 2014 there was no record of any complaint from him at any point about the condition of the dwelling. She said that the tenant would never answer the door to her, but communicated with her through leaving notes in the rent book. She said there was never any problem until all of the issues were suddenly raised by the tenant after the termination notice was issued to him in August 2014. She subsequently clarified that the first time she heard of problems was when she was notified by the PRTB of the dispute lodged by the tenant.
Asked to describe what she meant when she said the house had fallen into disrepair Ms. McHugh said that although she had the building re-roofed in 2012, there were leaks from the water-piping inside the house and the plumbing needed to be repaired; she said that the electrics also needed to be repaired and she wanted to put in double-glazing. She said that a full renovation had now taken place, excluding the tenant’s apartment. She said that she disputed that the house was not maintained (since 2007), but agreed that there should not have been tenants living there since 2012, due to the condition of the house, which was precisely why the family wanted to get all of the tenants in the house to move out.
Ms. McHugh said that she had a problem with the fact that the Adjudicator had awarded damages for each year or part thereof in respect of failure to maintain the dwelling, which suggested firstly that the tenant must have moved into a dilapidated, run-down apartment in 2007. She said she could have understood damages in respect of a failure to maintain the dwelling in 2013 and 2014, but that was when the family were attempting to get the tenants to move out, which left the landlord going round in circles. She said that now that the landlord had managed to get the rest of the tenants to move out the necessary works to the house remain unfinished, because the Respondent Tenant will not vacate.
In other evidence Ms. McHugh said that the front door of the house is open because the tenant would not accept the key and that there is now another leak in the house. In relation to the tenant’s allegation that an attempt had been made to have his electricity cut off, she said that she could not have done that because she was not the account holder. She said that the Respondent Tenant was the account-holder and that if there is problem with unpaid bills that is a matter between the tenant and the ESB. On the issue of bin collection Ms. McHugh gave details of arrangements she had put in place to pay for and have the bins collected through switching from Greyhound to City Bins. She said that for about two years she went over to the house to put out the tenant’s bins, could no longer do so now, but that her sister went over to put out the bins from time to time. She added that the tenant never puts his own bins out.
Ms. McHugh also said that the water supply to the dwelling had not been cut off and that Mr. Carroll would explain in more detail what had happened in relation to the water when the supply had to be interrupted for a few days to facilitate the repair of leaks in the dwelling. She also said that building work had not been started to get the tenant out of the house – it had been started because insurance could no longer be obtained for the house and that if the house is rented out it has to be insured. She added that the tenant had
been notified in writing that work would have to start and the builders would have to work around him.
Ms. McHugh said that she was unaware that the tenant was required to continue paying rent even when there are on-going proceedings until she heard someone from the PRTB stating this recently on television. She said that the tenant had paid no rent since May, 2014
Ms. McHugh confirmed that she has no access to the dwelling (i.e. the tenant’s flat), and that the tenant will not answer the door when she knocks. She said that back in 2011/2012 she did have a key to the flat and would go over on a Friday evening by arrangement with the tenant to collect the rent and found that a tap in the flat was always on. She said that around mid 2012 she found that her key no longer worked in the door lock, from which she assumed the tenant had changed the lock. From then on the tenant left the rent in the vacant apartment on the other side of the landing. She said that she had very little communication after that with the tenant because he would not speak to her. She was not aware of any grounds on which she could be considered to have penalised the tenant for taking a case to the PRTB.
In response to a question from the Respondent Tenant, Ms. McHugh re-stated that her name was Karen McHugh, that she had met the tenant a couple of times, that she was the Appellant Landlord’s daughter and that she was one of a Committee of two people appointed by the High Court as the landlord’s legal representatives. She also said that she stood by her evidence that she transferred responsibility for waste collection from the dwelling from Greyhound (to City Bins) in 2012 and referred to documentary evidence she had provided that a bin service has been in place for the dwelling since 2012.
Evidence of Peter McHugh:
Mr. McHugh said that the family wanted to turn the house back into a single family unit, which he would live in and from which an income stream could be derived for his father through the payment by him of rent.
He said that when he was in the house a few days ago there was a water leak from what he presumed was the tenant’s bathroom area because the water is turned off everywhere else in the house. He said the water was dripping down through the whole house to the lower ground floor and is clearly causing damage that can be seen in the ceiling. He said that there were other problems caused by the family’s inability to finish the necessary works in that the heating, water and electrics in the rest of the house, apart from the tenant’s apartment are not working. He said that there is independent electrical heating in the tenant’s dwelling, but he could not say if this was fixed to a wall.
Mr. McHugh also said that his family had made numerous offers to assist in finding alternative housing for the Respondent Tenant and the other tenants. He had offered to drive the tenant to Focus Ireland and other places and said that most of his business in this regard had been conducted by shouting through the tenant’s door.
In relation to rent, Mr. McHugh said that this had not necessarily been a big deal for the landlord’s representatives because of the dispute over the last year about his leaving or not leaving the dwelling, but that it did become an issue where damages were awarded against the landlord for not maintaining the dwelling at the same time as the tenant was not paying rent. He agreed that the dwelling was unfit for renting at the moment.
He said that the tenant had been in the dwelling for a long time and the Landlord’s representatives felt a moral obligation to deal with the tenants in the house in a favourable, friendly and reasonable way by engaging in an informal, non-legal process of giving notice to vacate, instead of engaging in a legal and confrontational process. He added that the landlord’s representatives now realised that trying to go the informal route was not the way to go and that they should have followed the Act.
Evidence of James Carroll:
Mr. Carroll said that before he started the major renovation works in the house, he did small bits of work for the landlord from time to time. He said that the biggest issue in the house was water leaks, adding that sometime in 2013 the ceiling below the tenant’s dwelling fell down into the room below as a result of water leaks from the tenant’s sink.
Mr. Carroll said that when the tenants, except for the Respondent Tenant and another tenant, had moved out of the house, he cleared out all the rooms and tried to gain access to the tenant’s dwelling to repair the water pipes. He said that the tenant would not allow his men into the dwelling to repair the pipes. He added that when he knocked at the door, the tenant, if he answered, walked out past him, growled at him and when he followed the tenant down the stairs to explain what needed to be done the tenant just kept going.
Mr. Carroll stated that he started the renovation works a couple of months later having placed signs around the house that he would be starting work. He said that when the council were putting in meters outside, they told him that there were major leak problems in the house. He corrected this statement to clarify that it was CLG who were putting in meters on behalf of Irish Water. He said that the water supply to the property was then cut-off for 3 or 4 days at most until he got most of the pipework capped off. As soon as this was done the water was re-connected to the tenant’s bathroom. Mr. Carroll confirmed that the first major leak found was in the garden, but when this was repaired and the water re-connected the meter was still spinning because of leaks in the house. He said that he then ran new pipes in to replace the existing lead pipes under the floors of the house and then re-connected water to the tenant’s dwelling. He also said that while the water was off he placed a tap outside during the day, so that anyone in the dwelling who wanted it would have access to water. He said that he had got a plumber in to do the work on the pipes with him and they had got the work done as quickly as they could, given the difficulty in replacing old lead pipes in an old three storey house. He also said that he had brought the plumber up with him to the dwelling and spoke to the Respondent Tenant through the door to let him know that they were turning the water off.
In relation to the electrics and ESB supply, Mr. Carroll said that 5 of the meters in the house were disconnected to facilitate work by an electrician, but there are still two meters with their own power in them. He said that he had never been able to finish off the electrical work and the seven meters were still in the house, including one relating to a supply to the dwelling occupied by the tenant. He said that the ESB would not deal with him in relation to that meter because it was in the tenant’s name.
In response to questions from the Respondent Tenant, Mr. Carroll confirmed that, although he had originally referred in error to the county council, it was CLG who told him that there were major leaks in the house and added that the tenant had failed to co-operate with him in any way in having the leaks dealt with. He also denied that just before Christmas, 2014 he ran upstairs to the tenant’s flat carrying a bucket of water and left it outside. He could not recall meeting any person named Antoine Mullen who called to the
house. He again said that the water had been off for 3 or 4 days around the summer of last year, but he could not recall the exact dates. In response to a question from the Tribunal Mr. Carroll said that the tenant’s attitude towards him was hostile, and that he felt that he had to have two people in the house at all times, with his employees not being willing to stay there on their own.
Respondent Tenant’s case:
The Respondent Tenant questioned the identity of the Landlord’s representatives. He was advised by the Tribunal that those representatives had formally identified themselves under oath and the Tribunal was satisfied that they were bona fide representatives of the Appellant Landlord.
The Respondent Tenant said that he could not understand why the landlord had appealed nor could he understand the nature of his appeal. He said that the dwelling was filthy, was literally rotting away and you wouldn’t put a dog in it. He said that the ceiling and the whole place was covered in black scum and the walls had to be wiped down twice a week with towels, which then had to be thrown out. He also said that he and other tenants had been on to the landlord for years to do the place up but he wouldn’t do anything about it. He added that the Community Welfare Officer from Rathmines Health Centre had said that he did not mind paying rent allowance for the dwelling because he knew that the tenant was stuck. He also said that he took the dwelling because he had no other choice – it was either that or the street. He said that he had tried to get out of the property and contacted various organisations without success – so that he had to live in what he described as ‘this filth’.
The Respondent Tenant said that when he moved into the dwelling the presses and wardrobes were covered in mouse droppings. He said that the surfaces in the kitchen area where food was cooked were sodden with damp, to such an extent that the wood collapsed, the sink fell, and had to be tied on to the water pipe and that was why water was leaking. He said that this happened a couple of years into the tenancy. He said that he got in touch with the landlord about the sink collapsing, but that the issue became a standing joke with the landlord. He said that he constantly asked the landlord to do something about the problem, but the landlord did nothing about it.
The Respondent Tenant said that his shower went off completely in 2011 – before that he said he only had a cold water supply anyway. He also said that there was one toilet which did not work properly shared between eight tenants in the house. He asked the landlord to fix his shower in 2011 who undertook to fix it and said that in the meantime he should use the shower on the second floor. He said that in the latter shower the tiles could be peeled off the walls and the window frame of the shower was held in place with a piece of cardboard. On one occasion when he was using the shower the frame fell in and he had to hold the frame up to prevent it falling on top of him.
The Respondent Tenant said that he was paying high end rent of €150 per week, and was a good tenant, which had been admitted by the Appellant Landlord. He said that the landlord begged him to stay on in the dwelling. However, he said that on average two mice a week were caught in the dwelling, and he was awoken on most nights with mousetraps going off. He said he told the landlord about the mice and other issues, either by leaving him notes or verbally. He added that the landlord did nothing about the dwelling, except to cut the grass on occasion, perhaps twice a year. Other than that he said he never saw the landlord doing anything with the house nor did Mr. Carroll do
anything with the showers. He also said that the bins were not collected and there was rubbish thrown all over the property. He said that there was rubbish stored in one of the bathrooms in the house, in an empty apartment, on the flat roof over an extension at the rear of the house, with rubbish in the front and back gardens also. He was of the belief that another tenant who in his view had psychiatric problems was responsible for the rubbish strewn around the house.
The Respondent Tenant also said the entire bottom of the house was a ‘pond’. He said that when you walked on the carpet you could hear it squelching under your feet and the house had been left like that for over two and a half years. He added that the windows in the house had been broken in, that there were no windows at the back of the house and that pigeons were roosting in a vacant flat, with pigeon detritus all over the place. He said that there was no security in the house and that it was possible to force the front door open. He added that with the filthy condition the dwelling was in, the landlord and his representatives could not get tenants of any calibre and were letting in drug addicts and people with social problems who did not care where they lived. He said that only 4 of the 8 flats in the house were let at any one time. He also said that he had lived in flats for 40 years, had seen some ‘kips’ in his time, but this place was in a different league. He expressed the view that the landlord should be facing criminal charges for the state the house was in and could not understand why the local authority had not inspected the property. The tenant was also of the view that the landlord had lived off other people’s misery and when he heard that the landlord had fallen down the stairs he felt that justice had been served and had no sympathy for him. The landlord’s representatives objected to these comments by the Respondent Tenant.
In other evidence the Respondent Tenant said that his mail had been stolen, including offers of accommodation from the local authority, but the landlord had refused to do anything about it; he said that there was no key in the front door of the house, that the door was on a kind of handle that could be opened: he also said that he had never changed the locks in the dwelling (i.e. the flat) he occupied.
The Respondent Tenant also said that squatters came into the house on a regular basis, were taking drugs there, had weapons and drug paraphernalia stored in the house and were defecating around the house. He said that he had been threatened and had called the Gardai many times. He also said that the house was in complete darkness in the evenings when he came in because the landlord would not pay the bills for electricity in the common areas. He added that there is no water anywhere in the house and that he has had no water since 2014, making it necessary for him to urinate in buckets and defecate in plastic bags, and to fill a gallon drum with water from a tap at the back of Rathgar chapel.
The Respondent Tenant submitted that intense non-stop noise of building work in the house was designed to harass him and another tenant into leaving. He also said that two attempts had been made to have his electricity cut-off. He said he knew this because of two letters he got from the ESB saying they had been told that there was no one living in the dwelling following which he contacted the ESB to advise them that there was a man living there. He agreed that an ESB bill addressed to the landlord at 41 Grosvenor Road was for the common areas in the house, but was adamant that there was no lighting in any part of those common areas nor in the toilets of the house. He said that his flat had power but that the other remaining tenant in the house had to go round with a torch at night to use the toilet. He added that his own ESB bills were very high, because the place
was so damp that he had to have three heaters on at all times, even in the summertime. He said he had to throw clothing out of the flat, that there was mould on shoes and clothes and two television sets had malfunctioned because of the damp.
The Respondent Tenant said that he was not paying any rent because he understood that a HSE inspector had called to the property and told the landlord’s representatives that they could not collect any more rent on the dwelling. He said that he had offered rent but the landlord’s representative, Karen McHugh would not accept it. He said that he was not in receipt of rent supplement because neither he nor the landlord would sign the relevant parts of the necessary forms, which he said was when his problems with Ms. McHugh began. He felt that she panicked when she heard that the forms also asked the landlord to provide a tax number and said she then wanted him out of the dwelling immediately, instead of signing the forms.
The tenant described a number of exchanges he had over the following days with the landlord’s son and two daughters, who he said were abusive and aggressive towards him, including on one occasion when one of them shoved the door of the dwelling open and threw an eviction notice into his face. He also said that the son, Peter McHugh, had said at one point he had a car outside and offered to take him to the Simon Community. His response was that he had no need for a homeless shelter, because he was a tenant in the dwelling with rights to occupy it. He said that the family were insistent that he leave the property, but had made no offers to him of alternative accommodation. He said that while he dealt with the family initially he told them he would no longer deal with them because of the obnoxious behaviour of the McHugh sisters, and told them that in future he would only deal with the PRTB.
In response to questions from the landlord’s representatives, the Respondent Tenant said that initially his rent was only paid temporarily to enable him to find alternative accommodation but he could never find anywhere else within the rent cap, despite contacting various organisations like the HSE and Threshold. As a result he said he had to stay in the dwelling unwillingly because that was his only option. He also said that the Appellant Landlord attended at the property on a regular basis, possibly twice a week, but he never saw the landlord doing any maintenance except cutting the grass twice a year. The tenant said that the landlord when present spent most of his time talking to the tenants, trying to get rent from those who owed him money.
In response to a question asking why the landlord’s key no longer worked in the door of the dwelling, the tenant said initially that the lock to the dwelling was broken, that the dwelling had been broken into many times and that the door had six or seven different locks on it. He corrected this to say that because the dwelling had been broken into six times the lock did not work properly and was hard to open. Asked why he had included a letter addressed to the Appellant Landlord in his submissions to the PRTB, the tenant said he had not opened the letter, but found it open in the hallway of the house. He said that the landlord’s representatives must have opened the letter and left it in the hallway as they did with several other letters addressed to the Appellant Landlord. He also said that he had left notes with the landlord and spoke to him many times, so that he and his representatives were fully aware of the state of the property, but their only interest was in collecting the rent.
In response to a question from the Tribunal Ms. Karen McHugh said that there were 8 bathrooms in the house – one for each to the apartments as was required. The tenant in response insisted that there was only one bathroom in the house for 8 people.
Final submission on behalf of Appellant Landlord:
Ms. Karen McHugh, said that she does not feel safe going into the house on her own any more, that she is not collecting any mail there, and had never seen the ESB bill addressed to her father. She said that she would like the tenant to vacate the dwelling so that the renovation works can be finished and allow her brother to move into the house and bring an end to all of the aggression and hassle.
Final submission by Respondent Tenant:
The Respondent Tenant said that what he was asking for was a period of grace until he gets accommodation from the Council, but the landlord’s representatives will not give him that and are adamant that they want him out of the dwelling. He also said that he is seeking redress for the substantial money he has spent on rent because he has not been fairly treated and was victimised after his complaint to the PRTB by the cutting off of the water for over a year and the attempts on two occasions to cut his power off.
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 20 December, 2007,
• The tenant is in occupation of the dwelling,
• The rent payable is €150 per week,
• The Respondent Tenant paid a deposit of €600,
• The deposit is in the possession of the Appellant Landlord.
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: Validity of notice of termination
The notice of termination of the tenancy served by the Appellant Landlord on the Respondent Tenant is invalid
Reasons:
It was agreed by the parties that the tenancy commenced on 20 December 2007. 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. Following the
expiry of that Part 4 tenancy on 19 December, 2011 the tenancy became a further Part 4 tenancy which, subject to the provisions of section 41 and 42 of the Act, is also subject to the statutory protection that it continue in being for a further period of 4 years from the commencement of the further part 4 tenancy, unless the landlord sought to terminate the tenancy in accordance with section 34 as applied by section 47 of the Act. Section 34 cites 6 grounds for termination of a Part 4 or further Part 4 tenancy, one of these being that the landlord requires the dwelling or the property containing the dwelling for his or her own occupation or for occupation by a member of his or her family.
On 6 February 2015, the High Court approved representative of the Appellant Landlord served a notice of termination on the Respondent Tenant, stating that the tenancy would terminate on 12 June 2015. The notice stated that ‘the reason for termination of the tenancy is due to the landlord seeking to retain the premises for her brother under section 34 of the Residential Tenancies Act, 2004’. Paragraph 4(a)(i) of the Table to section 34 of the Act provides, inter alia, that such a notice must contain or be accompanied by a statement specifying the intended occupant’s identity and (if not the landlord) his or her relationship to the landlord. While the notice of termination in this case specified that the intended occupant was the landlord’s brother it failed to identify that occupant by name and failed accordingly to meet the requirements of Paragraph 4(a)(i) of the Table to section 34.
In addition to the foregoing, Paragraph 4(b) of the Table to section 34 of the Act provides that a notice of termination such as that issued in this case must contain or be accompanied by a statement that the landlord, by virtue of the notice, is required to offer to to the tenant, a tenancy of the dwelling if the contact details requirement is complied with and the dwelling is vacated within the period of 6 months from the expiry of the required period of notice to be given to the tenant, or within 6 months of the final determination of any dispute in relation to the notice being referred to the PRTB. While the notice of 6 February 2015 states that ‘in the event that her brother vacates the premises within 6 months of the termination of your current tenancy, the landlord will offer a tenancy of the premises to you, there is no reference in the notice, or in any written statement accompanying it to ‘the contact details requirement’. Having regard to section 35(5) of the Act, the notice of termination should have contained a clause to the effect that the Respondent Tenant was required to notify the landlord in writing within 28 days from the service of the notice, or within 28 days of the determination of any dispute referred to the PRTB, or as soon as practicable after any change in the means by which he could be contacted by the landlord for the purposes of offering a new tenancy to him if the dwelling was vacated.
The notice of termination of the tenancy served on the Respondent Tenant on 5 February 2015, having failed to identify by name the intended occupant of the dwelling and having failed to contain any reference to the contact details requirement, is in accordance with section 115(2)(f) of the Act, declared by the Tribunal to be invalid.
Finding 2 : Failure to pay rent; rent arrears
The Appellant Tenant is in breach of his obligations under sections 16(a)(i) and 86(1)(a) of the Act in respect of the payment of rent.
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 any of the rent due to the Appellant Landlord since May 2014 the Respondent Tenant is in breach of this requirement. The Appellant Landlord confirmed that no rent payments had been made since May 2014. This was not disputed by the Respondent Tenant, who said that rent had been offered to the Landlord on one occasion but that payment of the rent had been refused.
While the Appellant Landlord’s representatives stated that their main interest lay in gaining vacant possession of the dwelling rather than in the payment of the outstanding rent, this does not relieve the tenant of his statutory obligation to pay the agreed rent on the dates it was due for payment, having regard in particular to the provisions of section 86(1) of the Act to the effect that pending the determination of a dispute that has been referred to the PRTB the rent payable under the tenancy concerned shall continue to be payable. The landlord’s representatives stated at the hearing that they were not foregoing their entitlement to payment of the rent and that they wished to pursue the issue of rent arrears.
The letting agreement entered into by the Respondent Tenant required him to pay rent in the amount of €150 per week on the Friday of each week. Based on the Landlord’s undisputed evidence that the tenant stopped paying rent in May 2014, the Tribunal finds that he failed to pay the rent due on Friday 2 May 2014 and on each subsequent Friday up to and including Friday 10 April 2015, the Friday before the Tribunal hearing. This represents a total of 50 missed weekly rental payments, resulting in a total in rent arrears owed by the tenant as at 10 April 2015 of €7,500. The Tenant was also due to make a further weekly payment of €150 on Friday, 17 April 2015 and on each subsequent Friday while he remains in lawful occupation of the dwelling.
Finding 3: Breach of Landlord obligations
The Appellant Landlord is in breach of his obligations under section 12(1)(b) of the Act.
Reasons:
Under section 12(1)(b) of the Act a landlord must carry out to the structure of a dwelling all repairs necessary from time to time to ensure the dwelling complies with prescribed regulations for rented houses; a landlord must also carry out all repairs and replacement of fittings necessary to maintain the interior and fittings in the condition they were in at the start of the tenancy and in compliance with any prescribed regulations.
In their evidence the landlord’s representatives stated that the dwelling and the property containing it were not in a fit state for renting, before major renovation works started last year. From the evidence it was clear that major renovation of the property was required, including significant plumbing and electrical works, replacement of windows etc. On the basis of that evidence the Tribunal must conclude that the landlord is in breach of the foregoing requirements of the Act.
The issues of the condition the dwelling was in at the commencement of the tenancy, when that condition deteriorated to the extent that the landlord was in breach of the requirements of section 12(1)(b) of the Act and the extent to which the condition of the dwelling deteriorated are more difficult to assess. On balance the Tribunal considers that the dwelling was in reasonable condition at the commencement of the tenancy; otherwise it is difficult to envisage how rent supplement could have been granted to the tenant if the
condition of dwelling then was as poor as he states it was. The Tribunal also accepts the evidence that the landlord attended at the property on a regular basis to attend to routine maintenance works.
The Tribunal is of the view that the tenant’s descriptions of the condition of the dwelling and the property within which it is located were exaggerated. For example the tenant stated that his bathroom was shared with the 7 other apartments in the dwelling; however, elsewhere in his own evidence he referred to the toilets in the dwelling in the plural, which strongly indicates that the tenant is aware that there are other bathrooms in the property. The Tribunal accepts the landlord’s evidence that each apartment in the property had its own bathroom.
The tenant also alleged that there is no water in the dwelling since 2014, when the supply was cut off by the contractor, Mr. Carroll, who was carrying out major renovation works. Mr. Carroll gave evidence to the effect that the water was cut-off for 3 or 4 days, because this was necessary to replace the lead piping in the property from which numerous leaks were occurring. The Tribunal accepts Mr. Carroll’s evidence in that regard, as well as his evidence that the water was cut-off for the minimum period required to facilitate the necessary works, with a temporary supply from an external tap being installed in the meantime. In that context the tenant’s evidence in relation to his own toilet facilities since 2014 lacked credibility. The tenant’s evidence that there has been no water supply to the dwelling since 2014 is further under-mined by the evidence, accepted by the Tribunal, that there is still a water leak in the property.
Finding 4: Breach of Tenant obligations
The Appellant Tenant is in breach of his obligations under sub-sections (c), (d), (e) and (j) of section 16 of the Act.
Reasons:
Under the above sub-sections of section 16 of the Act, a tenant must ensure that no act or omission on their part causes a landlord to be non-compliant with relevant obligations, including those under the standards for rented houses regulations; a tenant must also notify a landlord of any repair requirements and must allow access for repairs to be carried out and by appointment for routine inspections; a tenant must also not alter or improve a dwelling without the written consent of the landlord.
The Tribunal was not convinced by the tenant’s evidence that, between the start of the tenancy in 2007 and 2011, he regularly raised issues in relation to the condition of the dwelling with the landlord nor that the landlord refused to attend to any of such issues that were raised with him. The Tribunal further accepts the evidence of the landlord’s representatives than even after issues were raised with them following the issue of the first notice of termination to the tenant, he refused all requests for access to the dwelling either to carry out inspections or to carry out any necessary works. There is no doubt that the works being carried out at the property where the dwelling is located were directed towards converting the property back into a family dwelling; nevertheless the tenant cannot complain on the one hand that the landlord was in breach of his obligations to maintain the dwelling (i.e. his flat) and on the other hand refuse all access to the dwelling or even to communicate with the landlord’s representatives in relation to any works that may have been required.
The Tribunal also found the tenant’s evidence in relation to the locks on the dwelling (i.e. his flat) to be contradictory and on balance finds that the tenant did change the locks on that dwelling. Any such alteration is contrary to the provisions of section 16(j) of the Act.
Finding 5: Tenant’s claim for damages
The Tribunal rejects the Respondent Tenant’s claim for the payment of damages.
Reasons:
Under section 115(1) 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 has given careful consideration to the Respondent Tenants claim for substantial damages in respect of the Appellant Landlord’s breach of obligations under the Act. The Tribunal has found that the landlord has since 2012 been in breach of his obligations under the Act in respect of the maintenance of the structure and interior of the dwelling. In normal circumstances a breach of obligations of this nature would warrant an award of damages commensurate with the consequences for the tenant of such breach of the landlord’s obligations. However, the Tribunal must also take into account whether the tenant notified the landlord of any works needed, whether he allowed access to the dwelling to enable the dwelling to be inspected and the degree to which he co-operated with the carrying out of any necessary works. In refusing to allow access to the dwelling for any purpose and in refusing to communicate with the landlord’s representatives or any person acting on behalf of the landlord, the tenant failed to give any opportunity to the landlord to address any of the issues he had in relation to the structure or interior of the dwelling. In those circumstances the Tribunal considers that it would not be appropriate for it to exercise its discretion to award damages to the Respondent Tenant.
Finding 6: Failure to allow peaceful and exclusive occupation; unlawful termination of tenancy (Illegal eviction)
The Tribunal finds the Appellant Landlord was not in breach of his obligation under the Act to allow the Respondent Tenant to enjoy peaceful and exclusive occupation of the dwelling and further finds that the tenancy was not unlawfully terminated by the Appellant Landlord.
Reasons:
Under the provisions of sub-section (1)(a) of section 12 of the Act, a landlord must allow the tenant of a dwelling to enjoy peaceful and exclusive occupation of that dwelling. 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. 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.
The Tribunal considers that, in view of the fact that the landlord could no longer obtain insurance on the property, it was essential to start the renovation works programme in 2014. While the tenant no doubt found that the works were noisy and caused him certain inconvenience the Tribunal accepts that the works were not started for the purpose of interfering with the tenant’s peaceful and exclusive occupation of the dwelling. Given the essential nature of the works the Tribunal further rejects the tenant’s allegation that the
works were started for the purpose of forcing him to vacate the dwelling. The Tribunal also accepts that the water supply was cut-off in 2014 for the minimum period necessary to facilitate essential works related to the replacement of old lead piping and repairing leaks and not for the purpose of forcing the tenant to leave the dwelling. There was no evidence before the Tribunal to support any allegations that the landlord had attempted to have the tenant’s electricity supply cut off.
Finding 7: Prohibition on penalisation of tenant
The Appellant Landlord did not penalise the tenant for referring the dispute between the tenant and the landlord to the PRTB.
Reason:
Under section 14 of the Act, a landlord of a dwelling shall not penalise a tenant for referring any dispute between the tenant and the landlord to the PRTB for resolution. The tenant considered that he was penalised through the landlord’s commencing renovation works on the dwelling, through the cutting-off of his water supply and through the attempts to interfere with his electricity supply. The Tribunal rejects the tenant’s assertions that these measures, to the extent they may have been taken, were taken for the purpose of penalising the Respondent Tenant.
8. Determination:
Tribunal Reference TR0215-001027
In the matter of Frank McHugh (Landlord) and Thomas Lowry (Tenant) the Tribunal in accordance with section 108(1) of the Residential Tenancies Act 2004, determines that:
1. The Respondent Tenant shall pay arrears of rent in the sum of €7,500 to the Appellant Landlord, at the rate of €600 per calendar month, on the 28th day of each month, for 12 consecutive months, followed by a final payment of €300 on the 28th day of the 13th month, payment to commence the month next commencing after the issue of the Order in respect of the tenancy of the dwelling at Flat No.7, 41 Grosvenor Road, Rathmines, Dublin 6.
2. The enforcement of this Order for such payment of €7,500 will be deferred and the total sum owing will be reduced by the number of monthly instalments of €600 made by the Respondent Tenant to the Appellant Landlord on each due date until the sum of €7,500 has been paid in full;
3. For the avoidance of doubt any default in the payment of the monthly instalments of €600 shall act to cancel any further deferral and the balance due at the date of default shall immediately become due and payable to the Appellant Landlord.
4. The Respondent Tenant shall also pay any further rent outstanding from 17 April 2015 at the rate of €150 per week or proportional part thereof at the rate of €21.43 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 he vacates the above dwelling.
5. The Appellant Landlord shall refund the entire of the security deposit of €600 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.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination made on 01/05/2015.
Signed:
Finian Matthews Chairperson
For and on behalf of the Tribunal.

Nowak v Hogan

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001715 / Case Ref No: 0216-24475
Appellant Tenant: Agnieszka Nowak, Piotr Nowak
Respondent Landlord: Andrea Hogan, Sinead Rossiter
Address of Rented Dwelling: 1F Rathbourne Close, Ashtown , Dublin 15,
D15RR22
Tribunal: John Keane (Chairperson)
Kevin Baneham, Dervla Quinn
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 01 June 2016 at 10:30
Attendees: Piotr Nowak (Appellant Tenant)
Peter Mullen B.L. (Respondent Landlord’s
Representative)
Brian O’ Brien (Respondent Landlord’s Solicitor)
Andrea Hogan (Respondent Landlord)
In Attendance: Wordwave DTI
1. Background:
On the 25 February 2016, Agnieszka Nowak and Piotr Nowak (called “the Tenants” or
“Appellant Tenants” in this report) made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 76 of the Residential Tenancies Act 2004 as
amended (called “the Act” in this report”). On the 29 February 2016, Andrea Hogan and
Sinead Rossiter (called “the Landlords” or “Respondent Landlords” in this report) 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 22 March 2016.
The Adjudicator determined that:
(1) The Notice of Termination served on 1st of February 2016 by the Respondent
Landlords on the Applicant Tenants in respect of the tenancy of the dwelling at 1R
Rathborne Close, Ashtown, Dublin 15 D15 RR22 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 14 days of the date of
issue of this Order.
(3) The Applicant Tenants shall pay the sum of €3,905.73 to the Respondent
Landlords, within 14 days of the date of issue of this Order, being rent arrears in
respect of the tenancy of the above dwelling.
(4) The Applicant Tenants shall also pay any further rent outstanding from 22nd
of March 2016, at the rate of €1,049 per month or proportionate part thereof at the
rate of €34.49 per day, unless lawfully varied, and any other charges as set out in the
terms of the tenancy agreement for each month or part thereof, until such time as
they vacate the above dwelling.
(5) The Respondent Landlords shall refund the entire of the security deposit of
€1,100 to the Applicant Tenants, upon the Applicant Tenants vacating and giving up
possession of the above dwelling, less any amounts properly withheld in accordance
with the provisions of the Act.
Subsequently the following appeal was received from the Tenants on the 8 April 2016.
The grounds of the appeal related to an Invalid Notice of termination. The Appeal was
approved by the Board on the 12 April 2016
The RTB constituted a Tenancy Tribunal and appointed Kevin Baneham, John Keane
and Dervla Quinn as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed John Keane to be the Chairperson of the Tribunal (“the Chairperson”).
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 1 June 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin.
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
said that he would be happy to clarify any queries in relation to the procedures either then
or at any stage over the course of the Tribunal hearing.
The Chairperson explained the procedure which would be followed; that the Tribunal was
a formal procedure but that it would be held in as informal a manner as was possible; that
the person who appealed (the 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 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 that based on that recording a
transcript could be made available to the Tribunal if necessary to assist it in preparing its
report on the dispute, or to the parties for a fee. He reminded the Parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson said that members of the Tribunal would ask questions from time to time
to assist in clarifying the issues in dispute between the parties. The Chairperson
explained that should the parties indicate that they would be able to resolve the dispute
through negotiation, the Tribunal would facilitate any such settlement.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only [reference section 123(3) of the 2004
Act].
Counsel for the Landlords stated that he wanted to submit Tribunal reports from two
previous hearings for reference purposes. The Tenant objected to the submission of the
Tribunal reports on the grounds that the Determination Orders on foot of the reports were
being appealed to the High Court on points of law. The Tribunal explained to the parties
that Section 123 (2) provides that a determination order becomes binding on the parties
concerned unless an appeal is made to the High Court on a point of law. The Tribunal
informed the parties that the hearing would proceed without the submission of the
Tribunal reports on the basis that the parties could outline the issues to be addressed at
this Tribunal hearing to ensure that any issue dealt with in a previous Tribunal hearing
would not be put before the Tribunal for determination. On hearing the submissions from
the parties in this regard, the Tribunal found that the issues to be addressed were the
claim by the Tenants that the Notice of Termination dated the 1 February 2016 was
invalid, the claim by the Landlords regarding rent arrears after the 7 March 2016 and the
claim by the Landlords that the Tenants were overholding following the service of a valid
notice of termination.
5. Submissions of the Parties:
Appellant Tenants’ Case:
The Appellant Tenant stated that the Notice of Termination served on the 1 February
2016 did not comply with the requirements of Section 67 of the Act. He outlined that there
were 31 days between the date of service and the date of termination on the Notice of
Termination served on 1 February 2016. He explained that the period should have been
28 days, not more and not less as this was what was provided for in 67 of the Act.
The Appellant Tenant gave evidence that he did not agree with the amount of arrears
stated in the notice preceding the Notice of Termination served on the 1 February 2016
on the basis that the fixed tem Letting Agreement had come to an end and consequently
there was no obligation for the Tenants to pay rent. He said the last Letting Agreement
was in 2012 and this was renewed by text message in July 2012 for the period 1 August
2012 to the 31st July 2013. The Tenant stated that there might be a tenancy in place but
the parameters are not agreed as the Landlords are relying on a previous fixed term
agreement.
The Appellant Tenant claimed that the Landlords were in breach of their obligations under
Section 12(1) (b) of Act. He said that no repairs were carried out during the course of the
tenancy. On being questioned by the Tribunal, he accepted that he had not submitted any
documentation regarding the standard and maintenance of the dwelling for the case
before the Tribunal.
Under cross examination by Counsel for the Landlords, the Tenant agreed that the last
rent payment was made in June 2015. He agreed that he made an application for rent
supplement in January 2016 but this was rejected. He said if the application was
accepted he would have paid rent if there was an agreement with the Landlords and the
dwelling was maintained to the level it was in 2009. He also said he would clear arrears
and resume paying rent if that was a determination of the High Court to do so. He
accepted that he received the warning notices of the 31 July 2015 and 6 January 2016
and the Notice of Termination served on the 1 February 2016. He said he could not
remember if he replied to emails dated the 1 March 2016 and follow up email dated the 8
March 2016 regarding the plumber and floor specialist. He stated he could not remember
the last time he allowed the Landlords access to the dwelling for the purpose of carrying
out repairs.
Respondent Landlords’ Case:
The Respondent Landlord outlined that the last rental payment was received for rent due
on the 1 June 2015 and no other payment had been made since this date. She outlined
that the Tenants were contacted on the 1,2 and 8 March 2016 notifying them that the
Landlords were willing to carry out works.
With regard to the Tenants’ contention that the notice should have been no more and no
less than 28 days, Counsel for the Landlords submitted that Section 65(3) of the Act,
provides that a greater period of notice can be given. He referred to Section 3(1) of the
Act which sets out that the provisions of the Act apply to every dwelling the subject of a
tenancy. He referred to Section 5(1) which provides that a “tenancy” includes a periodic
tenancy and a tenancy for a fixed term whether oral or in writing or implied. He outlined
that Section 28 (2) explicitly states that a tenancy continues in being after the expiry of 6
months subject to the provisions of Chapter 3 of the Act.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The Tenancy commenced on the1 August 2009 and the Tenants were in occupation
of the dwelling at the date of the hearing..
2. A deposit of €1,000 was paid by the Tenants.
3. The rent at the outset of the tenancy was €1,100 per month and this was reduced to
€1,000 in or around July 2012.
4. The last rental payment was made on the 1 June 2015 and as rent is paid monthly in
advance this covered up to the 30 June 2015.
5. The parties agreed that there were two previous Tribunal hearings. A Tribunal
hearing took place on the 7 March 2016 which dealt with the issue of rent arrears up to
that date. A Tribunal hearing took place on the 29 October 2015 which dealt with
standard and maintenance issues raised by the Tenants and regarding a review of rent
by the Landlords. It was agreed that the Determinations for both cases have been
appealed to the High Court by the Tenants.
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 are set out hereunder.
7.1 Finding:
The Tribunal finds that the Appellant Tenants are residing in the dwelling that comes
within the jurisdiction of the Act and that a tenancy agreement is in existence under which
the Tenants are required to pay rent.
Reasons: Sections 30 and 31 of the Act provide that a term of a Letting Agreement
cannot be varied if it is inconsistent with the Act other than by agreement in a Part 4
tenancy or further Part 4 tenancy. A Part 4 tenancy arises where the Tenants has been in
occupation of the dwelling for a continuous period of 6 months. The Tenants are entitled
to remain in the dwelling for a further period of 3 ½ years unless the tenancy is terminated
under the grounds set out in Section 34 of the Act and in accordance with the
requirements for termination of tenancies provided for in Part 5 of the Act. A further Part 4
tenancy arises where the Tenants have been in occupation of the dwelling for a
continuous period of 6 months in the subsequent four year cycle. The tenancy
commenced on the 1 August 2009. A further Part 4 tenancy commenced on the 1
February 2014 being six months into the subsequent four year cycle. The Tenants were
paying rent at the commencement of the further Part 4 tenancy as they did not cease
making payments until the 1 June 2015. The Tenants are not permitted to vary the terms
of the tenancy during a further Part 4 tenancy in a manner that is inconsistent with the Act
other than by agreement. The failure on the part of the Tenants to pay rent constituted a
variation of the terms of the tenancy which is inconsistent with the Act and in breach of
Section 16(a) of the Act regarding the requirement to pay rent as it falls due.
Furthermore, the Tenants are obliged to pay rent after the expiry of term of the Letting
Agreement or extension of the term as there is a continuation of the tenancy within the
meaning of Section 5(1) of the Act which provides that a tenancy includes a periodic
tenancy or a tenancy for a fixed term whether oral or in writing or implied. When the term
of the Letting Agreement expires the Tenants reside in the dwelling under the same terms
and conditions which include the obligation to continue to pay rent until the terms and
conditions of the Letting Agreement are lawfully varied.
7.2 Finding: The Notice of Termination served on the 1 February 2016 by the Respondent
Landlords on the Appellant Tenants is not valid.
Reasons: The Tribunal is not satisfied that the Landlords complied with all of the
requirements for the termination of a tenancy at No. 1 in the Table to section 34, Part 4 of
the Act. The Landlords complied with the requirement that the Tenants are given notice
that they were in breach of their obligation to pay rent and notification that the Landlords
are entitled to terminate the tenancy if the Tenants fail to remedy the arrears. However
the Landlords failed to set out that the arrears are required to be remedied within a
reasonable period of time specified in that notification.
The requirements at No. 1 in the Table to section 34 apply where the Tenants have been
in occupation of the dwelling for a continuous period of 6 months and is known as a “Part
4 tenancy” and also applies where Tenants are in continuous occupation of a dwelling for
a continuous period of 6 months in the subsequent 4 year cycle of the tenancy and is
known as a “further Part 4 Tenancy”. The tenancy is a further Part 4 tenancy as it
commenced on the 1 August 2009. Section 57 (b) of the Act provides that the
requirements in Part 5 of the Act for a valid termination of tenancy are in addition to the
requirements of Part 4 of the Act. The Tribunal is not satisfied that the Landlords
complied with all of the requirements of Part 4 of the Act which is the first step in the
process of the service of a valid notice of termination prior to commencement of the
requirements for a valid termination of the tenancy under Part 5 of the Act. The
requirements of Part 5 of the Act are the service of the 14 day notice of rent arrears as
per Section 67(3) of the Act which was served on the 6 January 2016 being the second
step in the process and a Notice of Termination satisfying the requirements of Section 62
and 67(2) (b) (ii) of the Act which was served on the 1 February 2016 being the third step
in the process. While the procedure has been amended in the Residential Tenancies
(Amendment) Act 2015 to a two step process, the relevant sections had not been
commenced at the date of the service of the Notice of Rent Arrears on the 6 January
2016 and Notice of Termination served on the 1 February 2016.
The Tribunal rejects the argument advance by the Tenants regarding the period in the
Notice of Termination being required to be no less or no more than 28 days. As correctly
pointed out by Counsel for the Tenants, Section 65(3) of the Act, provides that a greater
period of notice can be given.
7.3 Finding: The Appellant Tenants were in breach of their obligation under Section 16 (a)
of the Act to pay rent on the day it falls due and the failure of the Appellant Tenants to pay
rent justifies an award of damages in addition to the amount of rent due to the
Respondent Landlords.
Reasons: The parties agreed that a previous Tribunal hearing had dealt with the issue of
rent arrears for the period up to the 7 March 2016. From the period of the 8 March 2016
to the date of the hearing being the 1 June 2016 Appellant Tenants were in occupation of
the dwelling for 2 months and 25 days. Calculated at the rate of €1,000 per month the
total amount of rent due over this period of the tenancy is €2,822 being 2 months X
€1,000 = €2,000 + €822 (25 days at 32.88 per day – daily rate (12 X €1,000/365). The
parties agreed that no rent was paid during the course of this part of the tenancy. In
addition, the Tribunal awards damages of €500 due to the loss and inconvenience
arising to the Landlords for the failure on the part of the Tenants to pay rent as it falls due.
The Tribunal determine that payment of the rent and damages is to be made within 28
days of the issue of the Determination Order taking into account that rent has not been
paid since the 1 June 2015.
7.4 Finding: No award is made in respect of the Respondent Landlords’ legal costs in the
sum of €2,167.50.
Reasons:
Section 5(4) of the Act provides that legal costs can only be awarded in exceptional
circumstances. While the failure on the part of the Tenants to pay rent is extremely
unreasonable, the Tribunal does not find the circumstances of this case to be exceptional.
The Tribunal takes into account that the Notice of Termination served on the 1 February
2016 has been found to be invalid in arriving at this finding.
7.5: Finding: The Landlords were not on notice of the claim regarding the standard and
maintenance of the dwelling in advance of the hearing. Accordingly, the Tenants’ claim
regarding the standard and maintenance of the dwelling was not before the Tribunal for
determination.
Reasons: The only ground for dispute resolution in the Application for Dispute Resolution
Services made by the Tenants and received by the RTB on the 25 February 2016 related
to an invalid Notice of Termination. There was no reference made to a dispute in relation
to the standard and maintenance of the dwelling. The Landlords were not on notice of any
claim regarding the standard and maintenance of the dwelling in advance of the hearing.
The Tribunal finds that it would be prejudicial to the Landlords to make any finding in
circumstances where they were not on notice of a claim regarding the standard and
maintenance of the dwelling in advance of the hearing.
8. Determination:
Tribunal Reference TR0416-001715
In the matter of Agnieszka Nowak, Piotr Nowak (Tenant) and Andrea Hogan, Sinead
Rossiter (Landlord) the Tribunal in accordance with section 108(1) of the
Residential Tenancies Act 2004, determines that:
1. The Notice of Termination served on the 1 February 2016, by the Respondent
Landlords on the Appellant Tenants in respect of the tenancy at 1F Rathbourne Close,
Ashtown, Dublin 15 is invalid.
2. The Appellant Tenants shall pay the total sum of €3,322 being rent arrears in
the amount of €2,822 and damages for the failure on the part of the Appellant Tenants
to pay rent as it falls due in breach of Section 16 (a) of the Act in the amount of €500 to
the Respondent Landlords within 28 days of the date of issue of the Determination
Order by the Board.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
14 June 2016.
Signed:
John Keane Chairperson

 

Nwankwo v Niedzweidz

 

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1215-001528 / Case Ref No: 1015-21385
Applicant Landlord: Kaine Nwankwo, Ebele Nwankwo
Respondent Tenant: Katarzyna Niedzwiedz, Monica Smulska
Address of Rented Dwelling: 10 Rossecourt Way, Rosse Court, Balgaddy,
Lucan, Dublin,
Tribunal: Siobhan Phelan (Chairperson)
John Keaney, Suzy Quirke
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 23 March 2016 at 10:30
Attendees: Kaine Nwankwo (Applicant Landlord)
Katarzyna Niedzwiedz (Respondent Tenant)
Monica Smulska (Respondent Tenant)
Ebele Nwankwo (Applicant Landlord)
AislingWoods, Trainee Solicitor (On behalf of the
Landlord)
In Attendance: Representative of DTI LLC, Stenographers
1. Background:
On 03 October 2015 the Applicant Landlord made an application to the Residential
Tenancies Board (“the RTB”) pursuant to Section 78 of the Act. The matter was referred
to mediation which took place on 23 November 2015. There was no agreement reached
at Mediation. Subsequently, an application was received for a Tribunal hearing. The
grounds of the application were Breach of tenant obligations, Rent arrears and Rent
arrears & overholding. The application was approved.
The RTB constituted a Tenancy Tribunal and appointed Siobhan Phelan, John Keaney,
Suzy Quirke as Tribunal members pursuant to Section 102 and 103 of the Act and
appointed Siobhan Phelan to be the chairperson of the Tribunal (“the Chairperson”).
The Parties were notified of the constitution of the Tribunal and provided with details of
the date, time and venue set for the hearing (an earlier hearing date having been
adjourned on the application of the tenants on medical grounds).
On 23 March 2016 the Tribunal convened a hearing at Tribunal Room, RTB, 2nd Floor,
O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
Documents which the Respondent Tenants referred to in a replying submission filed with
the RTB in early March, 2016 were accepted at the hearing in circumstances where the
Respondent Tenants advised the Tribunal that these documents had in fact been
furnished in advance by sending same by post. This documentation included copy
correspondence from the Applicant Landlords dating to August and December, 2015
which the Respondent Tenants claimed to have only received in March, 2016.
4. Procedure:
The Chairperson asked the parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the parties
that they had received the relevant papers from the 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 applied for a Tribunal (the Applicant Landlords) 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 Applicant
Landlords. The Chairperson explained that following this, both parties would be given an
opportunity to make a final submission.
The Chairperson stressed that all evidence would be taken on oath or affirmation and be
recorded by the official stenographer present and she reminded the parties that knowingly
providing false or misleading statements or information to the Tribunal was an offence
punishable by a fine of up to €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the parties that as a result of the hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only.
The Chairperson 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 Chairperson proceeded to have the parties giving evidence sworn in.
5. Submissions of the Parties:
The First Applicant Landlord
The First Applicant Landlord was led through his evidence by a barrister retained on his
behalf. He told the Tribunal that his family intended to move back into the dwelling in
circumstances where rent had not been paid since February, 2015 and the landlords
were in difficulty in making mortgage payments on the dwelling. He told the Tribunal that
he had not moved to terminate the tenancy immediately as he presumed the failure by
the tenant was as a result of financial difficulty. He explained that when rent continued
unpaid, he investigated on the RTB websites what steps needed to be taken and
thereafter served a fourteen day warning letter. He confirmed to the Tribunal that when
rent remained unpaid, he proceeded to send a Notice of Termination. He told the
Tribunal that the tenants did not communicate with him in response to this
correspondence and no rent was paid. He further told the Tribunal that he understood
that the Respondent Tenants were in receipt of rent supplement. He told the Tribunal
that when he received no payments for the months of February and March he informed
the Community Welfare Officer that rent was not being paid. The Community Welfare
Officer said that they would contact the Respondent Tenants and that if forms were not
returned that rent supplement would be stopped.
The Tribunal was referred to the terms of the Lease agreement. Under the terms of the
Lease agreement (which was in standard form), the Landlord had a right to access the
property for inspection purposes upon notice. The Landlord advised the Tribunal that he
had given notice of an intention to inspect the property and in the absence of a response,
he attended at the property with his wife and family. On attendance he told the Tribunal
that he found the locks changed without his consent. He was unclear as to the date of his
attendance and both June and August, 2015 were suggested.
He referred to the day he went to inspect the property stating that “an event took place”.
He said he had written to say he was coming and knocked on the door. The First Tenant
came out on balcony looked at the Applicant Landlord and said he “must be joking” if he
thought she would allow him access. He said although he had the original key it would
not work on the door as “the lock had changed”. He denied the Respondent Tenants
contention that the lock was changed the following day as a result of his visit but stated
that it had already been changed before he arrived. He confirmed that both parties called
the police but that the police only came after four hours during which time he and his
family waited outside in full view of neighbours and of the dwelling. He said that during
this time the second tenant arrived in a car and sat in the car outside.
He told the Tribunal that as a result of the approach taken by the Respondent Tenants
that he explored other avenues and in particular, the RTB avenue, as a legal means of
recovering possession of his property. In this context he also instructed his solicitors to
write to the Respondent Tenants asking them to vacate the dwelling. He confirmed that
there was no response to this letter.
In relation to complaints about the condition of the dwelling he told the Tribunal that until
January, 2015, letting agents had been employed to deal with issues concerning the
tenancy. He claimed to have been unaware of issues raised before January, 2015 in
relation to mould and leaks and said that these matters were being dealt with by his
letting agent. As far as he was concerned, the complaint made about a leak had been
addressed and he referred the Tribunal to an invoice for services provided including
repair of a leak and to correspondence between the letting agent and the Management
Company in relation to a leak in the roof area of the dwelling. He believed the leak
complained of had been fixed within a matter of weeks. He told the Tribunal that he had
been denied access to the property since January, 2015 and so had been unable to
address issues identified after that date. He was asked if there were any complaints after
April, 2015 and he replied that there were none that he was aware of.
He told the Tribunal that the Respondent Tenants had remained in his dwelling without
his consent in circumstances where they had not paid rent since February, 2015.
In terms of the quantification of arrears of rent he confirmed that rent at a rate of €900 per
month was owing for twelve months (since March, 2015 until March, 2016) in the sum of
€10,800 and that a further twenty three days rent was due by the date of hearing (23rd of
March, 2016) and continued to accrue while the Respondent Tenants remained in
occupation.
The Second Landlord
The Second Landlord gave more specific evidence in relation to efforts to resolve the rent
arrears situation prior to the issue of the 14 day warning letter. She explained that the
letting agent had sent an email on the 3rd of March, 2015 reminding the Tenants that they
were in arrears of rent. The Second Landlord then made contact directly with the
Tenants by telephone and by text on a number of occasions. They Second Landlord told
the Tribunal that the Respondent Tenants said they would not be paying their rent to the
Landlords but would pay the Bank instead.
Following the close of the Respondent Tenants’ evidence the Landlords were asked
whether a receiver had been appointed in respect of the property and it was confirmed
that no receiver had been appointed.
In relation to the complaints made about leaks and mould the position confirmed to the
Tribunal was that these matters were dealt with by the letting agent until January, 2015
and they had been denied access to dwelling since that date to deal with any issues. It
was further pointed out that the roof was a communal roof maintained by the
Management Company and not the responsibility of the Landlord. It was indicated that
the first knowledge the Landlords had of a mould problem was January, 2015 and that
they had never been made aware of a problem with mice.
Respondent Tenants’ Submissions
Mr. Keogh (Friend of Tenants)
A friend of the Tenants was the first to give evidence on behalf of the Respondent
Tenants stating that he received a call in early June, 2015 from the Second Tenant who
he described as being in a “desperate state”. He said she was in a panic and he couldn’t
understand what she was saying. She conveyed to him that she was outside the dwelling
and afraid to get out of her car because there were people standing outside her door.
He told the Tribunal that the next day he went to Woodie’s DIY and bought a new lock for
the door of the house. He also fitted an eye-hole to allow you to see who was at the door
and a chain for the door.
Later in the case, he interjected to add that he had sought advice from acquaintances
working in property lettings as to what could be done to assist the Respondent Tenants.
He was advised that it was likely that a receiver had been appointed in respect of the
dwelling. He also admitted to sitting in his jeep at the property waiting to see if the
Landlords would appear as it was his intention to prevent them seeking to recover
possession of the dwelling. The Landlords did not return to the dwelling while he was
there.
First Tenant’s Evidence
Arrears of Rent
The First Tenant accepted that no rent had been paid since February, 2015. She said
that they decided not to pay rent because a person had called to their door in January,
2015 to say that the Applicant Landlords had not paid their mortgage and that they should
not pay their rent but wait for further instructions and should hire a solicitor.
She said when she referred to this conversation in her later contact with the Landlords
that she was “attacked” on the basis that it was “none of her business” but she protested
to the Tribunal that the Landlords had not been honest with them by failing to disclose
that money was owed by them to the Bank and that the property was in danger of
repossession.
Her evidence to the Tribunal was to the effect that the instruction not to pay rent came
from the receiver appointed on behalf of the Bank.
Condition of the Dwelling
The First Tenant proceeded to give evidence in relation to the condition of the dwelling
which it was claimed breached the landlords’ obligations as to maintenance of the
dwelling. She instanced problems of mould and of leakage. The Tribunal were referred
to photographs of the condition of the dwelling which included photographs of mice
droppings.
The Leaks
She claimed a leak came from the ceiling through a light fitting and a fan and was a result
of a problem with the roof. She said that this problem had not been resolved by the
Letting Agent through contact with the Management Company and that although they had
done some works, the leak had persisted. She claimed that the delay in resolving the
issue was a result of the Landlords’ failure to pay fees to the Management Company.
She referred to a separate leak incident coming from the main bathroom which had been
repaired following a report to the letting agent.
The Mould
She claimed that mould was everywhere in the dwelling. She pointed out that there was
no problem of mould in the other adjacent dwellings. She said there was even mould on
the sofa and on their clothes. She claimed that she had been looking for new sofa for
several years. She said that mould first became a problem in the Winter of 2013 and that
she couldn’t get rid of it. She said she repeatedly reported the mould problem but to no
avail. When asked about the cause of the mould she said that it was a result of poor
ventilation in the apartment. She claimed that the mould problem had caused respiratory
problems for the tenants.
Heating
She referred to a separate occasion in January, 2015 when she claimed the tenants had
been without heating for a week while there was delay in repairing the boiler and
complained that this had impacted both on washing and on heat in the dwelling.
Mice Infestation
The Respondent Tenant claimed that mice became a problem after Christmas 2014. She
claimed the problem arose because there were no backs on units in the kitchen. She
accepted that she had not reported the problem with mice. It was put to the First Tenant
on behalf of the Applicant Landlord that there was evidence of lack of cleaning in the
dwelling given the accumulation of mouse droppings shown in the photographs. This was
denied by the Tenant who claimed to clean regularly.
Car Clamping
The First Tenant made specific complaint about the fact that the Second Tenant’s car
was “almost” clamped due to a failure on the part of the Landlord to notify her car
registration details to the Management Company. When asked if the tenancy included a
car parking space, the Tenant contended that it did while the Landlord objected that it did
not. No reference to a car parking space was identified in the formal lease agreement.
Lack of Response to Complaints
She claimed that she was generally frustrated by the lack of response when she made
complaints which were not addressed. She referred to the fact that the Second Tenant’s
car was nearly clamped and that her husband’s car had been clamped while he was living
with her due to the landlords’ failure to pay management fees.
Second Tenant’s Evidence
The Second Tenant moved into the dwelling in or about October, 2013. Although the
Landlord claimed to have no knowledge of her moving into the dwelling, she pointed to
formal notification to the letting agent. She was a named party to the Lease agreement
entered into in 2014.
The Second Tenant contradicted a contention that the leakage may have caused the
mould explaining that leakage and mould “are completely different things”. She referred
to the fact that clothes in the wardrobe were affected by mould giving an instance of her
daughter’s school sweater which was in regular use but which had mould on it. She
complained about the smell from clothes which she described as “horrible”. She told the
Tribunal that despite bringing this problem to the attention of the letting agent it was never
sorted out. She said that while workers had attended to deal with the leak, they had not
sorted out the problem. She contended that the mould problem was due to lack of
ventilation.
She described the situation on the day of the inspection when she claimed that the
Landlord had attempted to gain entrance to the dwelling by banging on the doors. She
said that they had waited some three hours for the Gardai to arrive. She described that
the landlords both attended with two or three children and claimed to the Gardai to be
there to get property left in the dwelling. She said they threatened to break the backdoors
even though there is no back door. She said they claimed to the Gardai that the
tenants had not been paying rent for years.
She claimed that the Landlords left rubbish behind them which she described as bread
and plastic bottles and that she had pictures of this on her laptop but had not brought
them.
She said she was traumatized by the events of that day and worried that the Landlords
would come again without notice. She complained that lots of people had been “coming
to our house” enquiring after the Landlords because they owed money. She said they
were afraid to open doors and felt really threatened. She was asked why she was afraid
of these people when they were looking for the Landlords and the Landlords did not live
there and she said that they had told people coming that the Landlords sometimes
collected their post. She said that when they reported to the Landlords that people were
calling they called her “stupid”. She stated that people called constantly although she
later accepted that this had been infrequent to begin with but became more regular. She
claimed not to have an address for the landlords but that they had both a UK and an Irish
telephone number. She confirmed that the lock had not been changed before the
Landlords attended in June, 2015 but had been changed afterwards. She explained that
the door would not open because the key was on the inside impeding the lock from
turning. She claimed that they had no notice of the inspection which took place and that
the correspondence dating to August and December, 2015 had only been collected from
the post office a little over a week before the hearing in March, 2016 when she attended
at the post office to collect another unrelated parcel. She told the Tribunal that no
explanation had been offered as to why these letters had not been delivered or why they
were at the post 0ffice. She claimed that the letters could not have been at the post office
for long as she had been there several times that week collecting other deliveries.
She was queried further about the official who turned up from the Bank in January, 2015
who it was claimed had told them not to pay rent. She stated that she had “presumed”
this person was a receiver. She stated that this person had left a card but they had not
retained the card. She said the tenants were nervous of people calling to the door and
were intimidated. When questioned about the people calling to the door it was contended
that people called from the Bank and that two people from Palmerstown Credit Union had
also called regularly. Initially this was about once per month but escalated and became
about twice a week.
The Second Tenant protested that the Landlords should have told them there was a risk
of repossession of the dwelling and that they withheld their rent because they were
scared they would be made homeless and needed money to provide alternative
accommodation. She complained about the fact that it had been stated in Court that the
mortgage had not been paid because they had not paid their rent while accepting that no
rent had been paid since February, 2015.
The Second Tenant contended that they were justified in not paying rent to the Landlords
when they were under threat of repossession contending that the failure of the Landlords
to tell them about their financial difficulties was dishonest. She further complained that
when rent supplement was stopped in May, 2015 as a result of contact with by the
Landlords with the Community Welfare Officer this meant that they could not pay rent. It
was confirmed that rent supplement payable to the First Tenant was in the sum of €300 a
month and that the balance of €600 was paid by the tenants and so the failure to pay rent
could not be fully attributed to the fact that rent supplement had been stopped in
circumstances where the Tenants had not been paying it over to the Landlords for several
months. Despite the fact that they had not been paying rent for in excess of a year, it was
indicated that they had no sum set aside in respect of the unpaid rent. When asked to
explain why this was so when they had suggested to the Landlords that they would pay
rent to the receiver, it was contended that they had to do repairs in the house. It was
confirmed that they had neither given notice to the landlords in respect of these repairs
nor kept receipts in respect of expenditure on repairs.
The Second Tenant claimed that when they contacted the RTB for assistance they were
told that as the dwelling was not registered they could not pursue a complaint and the
tenancy was only registered on some date in 2015. Correspondence before the Tribunal
suggested, however, that the reason the RTB could not deal with a complaint from the
tenants was because a complaint had not been lodged in time. This was put to the
Tenants who had no explanation for the divergence between their account that the
complaint had not been dealt with because of non-registration of the tenancy when the
correspondence on file suggested otherwise.
In a final submission on behalf of the Landlords, Mr. Scott stated that the Tenants were in
breach of contract in failing to pay rent and in failing to allow inspection. As for the
condition of the property, the Landlords had employed an agent to deal with any issues
and were not on notice of any issues. Since the letting agent had retired as agent the
Landlords had been denied access to the property despite several attempts. It was
submitted that the Landlords acted properly and in accordance with guidance given when
notifying the Community Welfare Officer that they were not receiving rent supplement
which had been paid in respect of the tenancy.
In a final submission on behalf of the Tenants, it was submitted that the Respondent
Tenant wished to move out and had been hoping to agree some time to move out so that
they would have a chance to save money. They were single mothers and could not
afford to pay for a barrister or solicitor, even though the Landlords who owed money to
the Bank could. It was submitted that they did not make a decision not to pay rent on the
basis that they would somehow get away with it. It was submitted that they had been
misled by the Landlords who charged them rent but then did not pay the mortgage to the
Bank. They did so because they had no money and were trying to make provision for
alternative accommodation.
6. Matters Agreed Between the Parties
Those matters that were agreed in advance of hearing the evidence were as follows:
I. The address of the dwelling is 10 Rossecourt Way, Rosse Court, Balgaddy, Lucan,
Co. Dublin.
II. Although the lease commencement date is the 30/07/2014, the first Tenant has been
in occupation since in or about mid-2010.
III. The agreed rent amount is €900.00 payable monthly.
IV. The security deposit held by the Applicant Landlord is €800.00.
V. Rent has not been paid since February, 2015 but the Respondent Tenants remain in
occupation.
VI. A 14 day warning letter dated March 16th, 2015 was sent in respect of rent arrears
following confirmation orally by the Respondent Tenants that they were not prepared to
pay rent.
VII. A Notice of Termination dated the 6th of April, 2015 was sent by the Applicant
Landlords giving a termination date of the 6th of May, 2015 and was duly received.
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 Notice of Termination dated the 6th of April, 2015 in respect of the tenancy
at 10 Rossecourt Way, Rosse Court, Balgaddy, Lucan, Co. Dublin is valid and the tenants
are over-holding
Reasons
It is accepted that no rent has been paid since February, 2015 in breach of a term of the
lease. The duty to pay rent is not affected by the existence of proceedings taken by a
Bank to seek possession of a property from landlords due to failure to discharge
mortgage arrears. In this case no receiver entitled to receive rent instead of the Bank had
been appointed and it was not open to the tenants to simply abstain from paying rent.
The Tribunal considered carefully whether it could be said that a reasonable time (within
the meaning of section 34(1)(a) of the Act) had been afforded to the Respondent Tenants
to discharge arrears of rent before proceeding to issue a warning letter and thereafter a
Notice of Termination.
The evidence adduced before the Tribunal, however, confirms that attempts were made
to resolve the rent arrears situation prior to the issue of a warning letter but that it was
made clear by the Respondent Tenants that it was no longer their intention to pay rent to
the Landlords.
In those circumstances the Tribunal is satisfied that a reasonable time had been afforded
to the Respondent Tenants to deal with arrears of rent. Thereafter the requirements of
formality prescribed under the 2004 Act in terms of the issue of a fourteen day warning
letter before proceeding to serve a Notice of Termination, the terms of the Notice of
Termination and the period of notice prescribed under the Act in instances of nonpayment
of rent are all observed. Accordingly, we have concluded that the Notice of
Termination served in April, 2015 was valid. It follows that the Respondent Tenants are
over holding.
Finding 2: The Respondent Tenants are in breach of their obligation to pay rent
Reasons
The Respondent Tenants are under a duty to pay rent under the terms of their lease and
pursuant to the provisions of section 16(a)(i) of the 2004 Act. It is accepted that no rent
has been paid since February, 2015. The Respondent Tenants remain under a duty to
pay rent notwithstanding that possession proceedings have been taken against the
Landlords. Rent is payable at a rate of €900.00 per month and €29.58 per day. Arrears
of rent as at the date of hearing amount to €11,480.54 (being €10,800 for the twelve
months from February, 2015 to February, 2016 and €680.54 at a rate of €29.58 per day
for twenty-three days in March, 2016).
The Tribunal does not find credible the evidence that an official from the Bank told the
tenants not to pay their rent and it is not accepted that the Tenants considered that they
had any entitlement to withhold rent. In deciding that it is appropriate in this case to
award further a sum of €1,000 as damages for non-payment of rent, bringing the total due
in respect of arrears of rent and damages for non-payment of rent to €12,480.54, the
Tribunal has further regard to factors in this case including:
i. the fact that rent supplement was paid directly to one of the tenants in respect of the
dwelling for a period of time but was not paid on to the Applicant Landlord towards rent
due nor retained for the purpose of defraying rent arrears; and
ii. the fact that no attempt to pay rent was made over a very protracted period; and
iii. the Applicant Landlords, who were defending possession proceedings, were caused
loss and inconvenience by the Respondent Tenants refusal to pay rent;
Finding 3: The Applicant Landlords are in breach of their obligation under the Act
Reasons
The Applicant Landlords are obliged to allow the tenants to enjoy peaceful and exclusive
occupation of the dwelling under section 12 of the Act.
There is conflict on the evidence as to whether the Applicant Landlord gave notice and/or
sought agreement in respect of an intention to inspect the premises.
The Tribunal is satisfied on the weight and balance of the evidence that the Applicant
Landlords presented without advance notice or agreement to inspect the dwelling in
breach of section 16(c) of the 2004 Act on the occasion of the inspection which resulted
in the Gardai being called during the summer of 2015.
The Tribunal does not consider there to have been sufficient evidence of a breach of a
right of peaceful occupation by reason of a failure to pay management fees resulting in an
attempt to clamp a tenant’s car, noting that on the evidence heard the car was not in fact
clamped. Nor does the Tribunal accept that there was interference with the right to
peaceful occupation by reason of the attendance of persons at the dwelling in search of
the Applicant Landlords. The Tribunal does not find evidence that these persons,
supposedly from the Bank and the Credit Union, persisted in coming to the dwelling even
when informed that the Applicant Landlord did not live there to be persuasive. The
Tribunal does not accept as credible claims from the tenants that these persons attended
at the dwelling in a manner which caused fear or distress to them.
The Tribunal is further satisfied that the Applicant Landlords were in breach of duty under
section 12(1)(b) of the Act to carry out necessary repairs by reason of a failure to resolve
leaks at the dwelling and to repair a fault in the heating system (which fault meant that
there was no heating for a week) in a timely manner. Even where leaks emanate from
common areas over which landlords have no control, as contended here, Landlords are
under a duty to pursue appropriate avenues with the Management Company in active
pursuit of a resolution to the problem. It is noted, however, that from January, 2015, the
Applicant Landlords were not afforded access to the dwelling to enable repairs to be
carried out, a factor which bears on the level at which damages are assessed for the
failure to repair leaks complained of.
The Tribunal does not consider that there has been sufficient evidence that the Applicant
Landlords caused a problem of mould at the dwelling as a result of any breach of duty on
their part and attaches weight in this regard to the fact that there is no problem of mould
in adjacent properties which were all of similar construction and design. Similarly, the
Tribunal is not satisfied on the evidence that vermin infestation complained of arose by
reason of any breach of duty or obligation on the part of the Applicant Landlords arising
from the construction of kitchen units noting in this regard that this problem dates to
Christmas 2014, several years into the tenancy and in the absence of any structural
changes to the kitchen units.
The Tribunal awards €500 to the Respondent Tenants in respect of the said breach of
obligation in respect of quiet and peaceful occupation and a further €500 in respect of the
failure to cause necessary repairs to be carried out in a timely manner giving a total of
€1,000 for breach of Landlords’ obligations.
Finding 4: The Respondent Tenants are in breach of their obligations under the Act
Reasons
Under section 16 of the Act the Tenants are obliged to 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 and/ 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.
The Tribunal is satisfied on the evidence that the Applicant Landlords were not afforded a
reasonable opportunity to inspect the dwelling or carry out any repairs considered
necessary at any time after January, 2015 despite requests in writing on their behalf by
their solicitor and by themselves directly. The Tribunal assess damages in the sum of
€500 in respect of the said breach of Tenants’ duty.
8. Determination:
Tribunal Reference TR1215-001528
In the matter of Kaine Nwankwo, Ebele Nwankwo (Landlord) and Katarzyna
Niedzwiedz, Monica Smulska (Tenant) the Tribunal in accordance with section
108(1) of the Residential Tenancies Act 2004, determines that:
1. The Notice of Termination dated the 6th of April, 2015, in respect of the
tenancy at 10 Rossecourt Way, Rosse Court, Balgaddy, Lucan, Co. Dublin is valid;
2. The Respondent Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 28 days of the date of
issue of the Order;
3. The Respondent Tenants shall pay the total sum of €11,980.54 to the
Applicant Landlords (being rent arrears of €11,480.54 and damages for non-payment
of rent and breach of tenant’s obligations in the sum of €1,500 less €1,000 for breach
of landlords’ obligations in respect of the above dwellings) in 13 consecutive monthly
payments at the rate of €900 per month payable on the 28th day of each month
immediately following the date of issue of this Order for a period of twelve months and
a final payment in a thirteenth month of €1,180.54;
4. The enforcement of this Order for such payment of €11,980.54 will be
deferred and the total sum owing reduced by the cumulative sum paid in the monthly
instalments made by the Respondent to the Applicant Landlords on each due date
until such time as the total sum of €11,980.54 has been paid in full;
5. 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 Landlords;
6. The Respondent Tenants shall pay rent at a daily rate of €900 per month or
proportionate part thereof at the rate of €29.59 per day from the 23rd of March, 2016
until the date they vacate and give up possession of the dwelling;
7. The ApplicantLandlords shall refund the entire of the security deposit of €800
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
22 April 2016.
Signed:
Siobhan Phelan Chairperson
For and on behalf of the Tribunal.

O’Keeffe v Brissett

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001444 / Case Ref No: 0915-20948
Appellant Landlord: Conor O Keeffe, Kathleen O’Keefe
Respondent Tenant: Sandrine Brisset
Address of Rented Dwelling: 2 Cheltenham Place, Bedsit 2, Portobello,
Rathmines , Dublin 6,
Tribunal: Eoin Byrne (Chairperson)
Louise Moloney, Nesta Kelly
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2
Date & time of Hearing: 19 January 2016 at 10:30
Attendees: Conor O’Keeffe (Apellent Landlord)
Kathleen O’Keeffe (Appellent Landlady)
Sandrine Brisset (Respondent Tenant)
In Attendance: PRTB appointed stenographers
1. Background:
On the 14th September, 2015, the Tenant made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred
to an adjudication which took place on the 30th October, 2015. The Adjudicator
determined that:
1. The Notice of Termination served on 19 August 2015 by the Respondent Landlords on
the Applicant Tenant, in respect of the tenancy of the dwelling at 2 Cheltenham Place,
Portobello Bridge, Dublin 6, is invalid;
2. The Respondent Landlords shall pay the total sum of €500 to the Applicant Tenant
within 28 days of the date of issue of this Order, being damages of €500 for the
consequences of the service of an invalid notice of termination on the Applicant Tenant.
3. The Applicant Tenant shall continue to pay rent at the monthly rate of €800, 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.
Subsequently a valid appeal was received from the Landlord by the PRTB on the 10th
November, 2016.
The Board, at its meeting on the 20th November, 2015, approved the referral to a
Tenancy Tribunal of the appeal. The PRTB constituted a Tenancy Tribunal and appointed
Eoin Byrne, Louise Moloney and Nesta Kelly 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 07 December, 2015, the Parties were notified of the constitution of the Tribunal
and provided with details of the date, time and venue set for the hearing.
On the 19th January, 2016, the Tribunal convened a hearing at 10:30am at the offices of
the PRTB, O’Connell Bridge House, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
No further documentation was submitted by the parties concerning the issues in dispute.
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 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 their 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 was an offence
punishable by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only. The Parties were then sworn in.
5. Submissions of the Parties:
Appellant Landlords’ Case:
The Appellants accepted that the notice of termination served was invalid. However, they
asserted that they were not happy with the award of damages against them and
contended that they had entered an agreement with the Respondent Tenant prior to the
initial adjudication hearing, such that the application to the PRTB would be withdrawn.
They outlined the history of the tenancy and the fact the Respondent Tenant and her Co-
Tenant had previously resided in other units in the building, prior to moving into the
basement flat. They indicated that the reason for the service of the notice of termination
was that one of the Appellants had been offered a place in a college in Dublin and
required a place to live in Dublin. They said that, prior to the adjudication hearing, there
was a meeting with the Respondent Tenant and her Co-Tenant, where it was agreed that
a new lease would be granted if the application to the Board was rescinded. They relied
upon the emails supplied from the letting agent in this respect, also referring to a phone
call which took place prior to the adjudication hearing. They said that they assumed the
Adjudication Hearing was cancelled. They stated that at that time they had no issues with
the tenants otherwise and were happy for them to agree to remain in the dwelling.
They said that after this meeting and the agreement they thought had been arrived at
they found out that there were rent arrears in respect of the dwelling and that that
presented a complication in terms of signing of the new lease. They stated that the
college place could be offered again in February, 2016 and that the Appellant may again
need a place to live in Dublin.
The Appellant Landlords said that they experienced difficulty in communicating with the
Respondent Tenant.
In cross-examination, they accepted that Mr O’Keeffe had lived in the dwelling for
approximately fifteen years, but also accepted that there had been other tenants in the
dwelling prior to the Respondent Tenant moving in. They reiterated that the reason for the
purported termination of the tenancy was the offer of the college place and that the place
in college had to be given up as a result of the travel required from Naas and the fact the
Appellant had no alternative accommodation in Dublin.
In closing submissions, the Appellants again accepted that the notice served was invalid.
They indicated that the reason they had not attended the first hearing was because they
believed the hearing had been cancelled by agreement. They reiterated that the reason
for the termination was because Mr O’Keeffe needed the dwelling and the space, as he
needed a one bedroom apartment, as he smoked and owns a dog. They also reiterated
that Mr O’Keeffe could again be offered a place in the same college commencing in
February, 2016.
Respondent Tenant’s Case:
The Respondent Tenant said that it was never made clear to her at any stage, either
before moving into the dwelling or afterwards, prior to receipt of the notice of termination,
that Mr O’Keeffe may require the dwelling back for his own use. She stated that she had
a one year lease in place and referred to the documentation submitted. She further
claimed that previous tenants had had their tenancies terminated as a result of assertions
that Mr O’Keeffe required a dwelling for his own use, and stated that there were plenty of
other units in the building which had become vacant during her tenancy in the dwelling
and which he could have moved into if he needed to.
In respect of the meeting that took place before the initial adjudication hearing, she said
that the issue of the PRTB was never raised and that there was no question of
withdrawing the case. She said that all she wanted at that stage was security and that,
without a written agreement being committed to, she could not trust the Appellants. She
contended, in particular, that they had an oral agreement, prior to the start of the tenancy,
that rent would be €750, but that the rent was in fact set at €800 per month, when the
lease was signed. As such, she contended that she required the security of something in
writing and that she never agreed to withdraw the application. She indicated that while
she had been in email contact with the letting agent, no lease was produced prior to the
adjudication hearing and she thus did not have the security she sought.
She said that she suffered stress between the receipt of the notice of termination in
August, 2015 and January, 2016, when the new lease was received by her. She
contended that it was not easy living in a situation where you are not sure if you are going
to be obliged to leave the dwelling. She also stated that at any stage when an issue with
the rent was brought to her attention, in respect of a deficit in payment, this was
immediately rectified.
In cross-examination, she clarified that the offer of a two year lease had only been made
after the hearing in October but also stated that it did not provide her with the security
required in circumstances where the Appellant Landlords had not yet signed the lease.
In her final submissions, she again stated that the new lease was not signed by the
Respondent Tenant and her Co-Tenant until after the initial adjudication hearing and that
the Appellant Landlords had not yet signed this new lease.
6. Matters Agreed Between the Parties
The parties agreed that the tenancy commenced on the 10th November, 2014. They also
agreed that the current monthly rent in respect of the tenancy was €800, the new lease
not having been signed by the Respondent Landlords. They further agreed that a deposit
of €975 had been paid. They accepted that there were two tenants living in the dwelling
and that the Respondent Tenant present was attending on behalf of both tenants.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons thereof, are set out
hereunder.
Finding 1: The Tribunal finds that there was never a concluded agreement between the
parties, prior to the initial adjudication hearing, that the case would be withdrawn and that,
accordingly, the Tribunal has jurisdiction to consider the matter.
Reasons: The Tribunal is satisfied that at no stage prior to the initial adjudication hearing
did the parties conclude any agreement that the case before the PRTB would be
withdrawn. It is clear that had such an agreement been reached, the Board would have
no jurisdiction to determine the dispute between the parties. The evidence before the
Tribunal is not conclusive and it appears to the Tribunal that the parties were never of one
mind, where the evidence tends to show that the Respondent Tenant never agreed to
withdraw the application to the Board. In particular, having regard to the evidence of the
Respondent Tenant that the issue of withdrawing the application was never discussed in
her communications with the letting agent or the Respondents, and the absence of direct
evidence from the letting agent in respect of any discussions that occurred with him (the
only evidence from the letting agent being the hearsay evidence contained in the emails
from the letting agent, submitted by the Appellant Landlord), the Tribunal cannot find that
there was ever a concluded agreement between the parties to withdraw the case.
Further, the Tribunal also notes that the purported new lease, allegedly part of the
agreement, was not entered into prior to the adjudication hearing and, as such, is
evidence that a concluded agreement had not been reached by the parties in any
respect, prior to the adjudication hearing. Accordingly, where the Tribunal is satisfied that
there was no finalised agreement to withdraw the case before the Board, the Tribunal is
satisfied the matter is properly before the Board and that the Tribunal has jurisdiction to
determine the dispute before it.
Finding 2: The Tribunal finds that the notice of termination served by the Appellant
Landlords on the Respondent Tenant dated the 19th August, 2015, is invalid.
Reasons: The Tribunal is satisfied on the evidence before them that the notice of
termination as served is invalid, in that it does not comply with section 62 of the Act. The
Tribunal notes that the Appellant Landlords acknowledge that the notice was not valid.
The Respondent Tenant had been in occupation of the dwelling in question for longer
than six months at the date of service of the notice and, in accordance with the Act, had
and continues to have a part four tenancy in the dwelling, which may only be terminated
in accordance with the relevant provisions of the Act. In particular, the notice does not
comply with the requirements of section 34 of the Act, in that it does not lay out the
expected duration of the occupation of the dwelling by Mr O’Keeffe, nor does it comply
with the requirements laid out in paragraph 4(b) of the Table to section 34 of the Act
surrounding the obligation to offer a new tenancy of the dwelling in certain circumstances.
It also does not comply with the technical requirements of section 62(1)(c), (f)(ii) or (g) of
the Act. Further, the Respondent Tenant has a fixed term tenancy in the dwelling, which
may only be terminated where a tenant is in breach of obligations, in accordance with
section 58(3) of the Act. That was clearly not the position in the present case and, having
regard to all of those factors, the Tribunal is satisfied the notice is invalid.
Finding 3: We find that the Respondent Tenant suffered distress and inconvenience as a
result of the service of the invalid notice and that she is entitled to €500 damages in this
respect.
Reasons: The Tribunal is satisfied that the Respondent Tenant suffered considerable
distress and inconvenience following the service of the notice of termination. In the
particular circumstances of this case, where the Respondent Tenant believed she had the
security of a fixed term lease, and where the notice purported to interfere with this
security, and having regard to the evidence given relating to her personal circumstances
at hearing, the Tribunal is satisfied that she suffered considerable distress, between the
service of the notice and finding out that the notice was invalid, such that she is entitled to
damages in the amount of €500, and that an order in this amount should be made, having
regard to section 115(2)(d) of the Act. Having regard to the right of the Respondent
Tenant to a prompt remedy, but also having regard to the evidence given at hearing
relating to the means of the Appellant Landlords, the Tribunal is satisfied that it is
appropriate to allow a period of 28 days after the issue of the Order of the Board for this
amount to be paid.
Finding 4: We find that no other matters are properly before the Tribunal and accordingly
make no finding in respect of any other issue.
Reasons: The Tribunal is satisfied the only issue raised in the initial application by the
Respondent Tenant concerned the validity of the notice of termination. The only matters
before the adjudicator, and the only matters considered by the adjudicator, were the
validity of the notice and the loss suffered by the Respondent Tenant. Accordingly, the
only matters properly before the Tribunal on appeal are those two matters, along with the
preliminary issue relating to jurisdiction considered at finding 1 above. As such, the
Tribunal has no obligation, or indeed power, to make any findings, one way or the other,
or consider documentation, in respect of any other issues relating to the tenancy. This
includes, but is not in any way limited to, issues surrounding alleged rent arrears, or
whether or not a concluded two year lease agreement has now been entered into
between the parties. The only finding the Tribunal makes in that respect is that the parties
had not entered a concluded agreement prior to the date of the adjudication hearing, and
no further finding is made by the Tribunal, one way or the other, as to whether there is
now a two year fixed term lease in place.
8. Determination:
Tribunal Reference TR1115-001444
In the matter of Conor O Keeffe (Landlord) and Sandrine Brisset (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 19th August, 2015, by the Appellant
Landlords on the Respondent Tenant, in respect of the tenancy in the dwelling at
Basement Flat, 2 Cheltenham Place, Portobello Bridge, Dublin 6, is invalid;
2. The Appellant Landlords shall pay the total sum of €500 to the Respondent
Tenant within 28 days of the date of issue of this Order, being damages of €500 for the
consequences of the service of an invalid notice of termination on the Respondent
Tenant in respect of the tenancy in the dwelling at Basement Flat, 2 Cheltenham
Place, Portobello Bridge, Dublin 6.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 08 February 2016.
Signed:
Eoin Byrne Chairperson
For and on behalf of the Tribunal.

Pryzbylski v Land

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001713 / Case Ref No: 0216-24226
Appellant Tenant: Karol Przybylski, Joanna Pakula
Respondent Landlord: Elizabeth Lane
Address of Rented Dwelling: 268 MorellWay, Monread Road, Naas , Kildare,
W91DH7T
Tribunal: Roderick Maguire (Chairperson)
Healy Hynes, Suzy Quirke
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 13 June 2016 at 10:30
Attendees: Joanna Pakula (Appellant Tenant)
Karol Przybylski (Appellant Tenant)
Noel Lane (Husband of the Respondent Landlord)
Eileen McGarr (Sister of the Respondent Landlord)
In Attendance: DTI Wordwave Recording Technicians
1. Background:
On 15 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 14 March 2016. The Adjudicator determined that:
1. The Notice of Termination served on the 4th January 2016 by the Applicant
Landlord on the Respondent Tenants in respect of the tenancy of the dwelling at 268
MorrellWay, Monread Road, Naas, Co. Kildare W91 DH72 is valid.
2. The Respondent Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 28 days of the date of
issue of this Order.
3. The Respondent Tenants shall pay the sum of €5,000 to the Applicant
Landlord in five consecutive monthly payments of €1,000 on the 28th day of each
month commencing on the 28th day of the month immediately following the date of
issue of the Order being rent arrears of €5,000 in respect of the tenancy of the above
dwelling.
4. The enforcement of the Order for such payment of €5,000 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 €5,000 has been paid in full.
5. 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.
6. The Respondent Tenant shall also pay any further rent outstanding from 20th
March 2015 at the rate of €1,000 per month or proportionate part thereof at the rate
of 32.87 per day unless lawfully varied and any other charges as set out in the terms
of the tenancy agreement for each month or part thereof until such time as they
vacate the above dwelling.
7. The Applicant Landlord shall refund the entire of the security deposit of
€1,000 to the Respondent Tenants upon the Respondent Tenants vacating and
giving up possession of the above dwelling less any amounts properly withheld in
accordance with the provisions of the Act.
Subsequently the following appeal was received from the Tenant on 08 April 2016. The
grounds of the appeal are Rent arrears and Overholding. The appeal was approved by
the Board on 12 April 2016
The RTB constituted a Tenancy Tribunal and appointed Healy Hynes, Suzy Quirke,
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”).
On 06 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 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:
1 Two letters submitted by the Tenants dated 31 October 2015 and 3 December 2015
from the Tenants
2 Two pages of text messages submitted by the Landlord
3 A letter from the accountant of the Landlord
4 Two receipts for registered post from the Landlords with dates of posting of 15
December 2015 and 2 January 2016
4. Procedure:
The Chairperson asked the Parties present to identify themselves and to identify in what
capacity they were attending the Tribunal. The Chairperson confirmed with the Parties
that they had received the relevant papers from the 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 people who appealed (the Appellants) would be invited to present their case first; that
there would be an opportunity for cross-examination by the Respondent; that the
Respondent would then be invited to present his case, and that there would be an
opportunity for cross-examination by the Appellants.
The Chairperson explained that following this, both parties would be given an opportunity
to make a final submission.
The Chairperson stressed that all evidence would be taken on oath and be recorded by
the official stenographer present and he reminded the Parties that knowingly providing
false or misleading statements or information to the Tribunal was an offence punishable
by a fine of €4,000 or up to 6 months imprisonment or both.
The Chairperson also reminded the Parties that as a result of the Hearing that day, the
Board would make a Determination Order which would be issued to the parties and could
be appealed to the High Court on a point of law only.
5. Submissions of the Parties:
Appellant Tenant’s Case:
The Appellant Tenants admitted that they owed EUR 8,000 in rent up to 20 June 2016.
They stated that they had not had work since September 2015 and had not paid any rent
since then. They stated that the Landlord had refused to sign the form to apply for rent
allowance. They were informed that the RTB could not order the Landlord to do that.
They stated that they had never got any notices from the Landlord, though they had
received the letter of 3 December 2015 stating that their rent was overdue as they
submitted that in evidence with another letter of 31 October stating that rent was overdue
also. The Tenants stated that, contrary to what was written on the appeal notice, they had
first learned that there was a dispute from the RTB correspondence at the beginning of
March 2016. They also stated that they did not have access to the garden through the
back door of the house, and had to go around through the front door and that this was not
good as they had a young child. They also stated that the Landlord had refused to give
them a reference.
Respondent Landlord’s Case:
On behalf of the Landlord it was stated that the failure to pay rent had been extremely
distressing to the Landlord and her extended family and had caused financial hardship as
well as much anxiety.
It was submitted that the notices were served properly, and that though the notice of
termination dated 4 January 2016 submitted in the RTB case file was not signed by the
Landlord, the original that had been sent by registered post would have been signed by
her.
The day on which the registered postal slip was dated was 2 January 2016, and it was
submitted that the Landlord dated the notice not on the day that she posted it but on the
date that the tenants would have received it.
6. Matters Agreed Between the Parties
The following matters were agreed between the Parties:
1. The amount due in rent was EUR 8,000 up to 20 June 2016.
2. A deposit of EUR 1,000 was paid and the rent is EUR 1,000 per month.
3. The agreement between the parties commenced on 20 July 2016 and the
tenants are still in occupation.
7. Findings and Reasons:
Having considered all of the documentation before it, and having considered the evidence
presented to it by the Parties, the Tribunal’s findings and reasons thereof, are set out
hereunder.
7.1 Finding: The Tribunal finds that a valid Notice of Termination was served on the
Tenants on 4 January 2016.
Reasons:
1. Although the tenants stated that they did not receive the warning letter of 15 December
and never received any Notice of Termination dated 4 January 2016, the Tribunal is
satisfied that these were sent by the Landlord. The Tribunal is also satisfied that the
original documents were signed by the Landlord, as she had done for other documents.
The Notice of Termination was sent pursuant to section 6(1)(c) of the Residential
Tenancies Act 2004 (“the 2004 Act”) on 2 January 2016 and not the 4 January 2016, the
date on which it was dated. Pursuant to section 62(1)(c) of the 2004 Act states that the
Notice of termination must “specify the date of service of it.” In this case, therefore, the
date of service on the Notice of Termination was incorrect.
However, the Residential Tenancies (Amendment) Act 2015, commenced on 6 January
2016, inserts a new section in to the 2004 Act. This section was brought into force by
Statutory Instrument No. 4 of 2016 on 8 January 2016, 6 days after the Notice of
Termination was sent by the Landlord in this case:
“64A. On the hearing of a complaint under Part 6 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.”.
This section allows for the correction of a slip or omission, such as putting the incorrect
date on a Notice of Termination.
There is a question as to whether this statutory provision is retrospective. The definition
widely adopted, as in the Supreme Court in Hamilton v. Hamilton [1982] 1 IR 466 is that
of O’Higgins J.:
“For the purpose of stating what I mean by retrospectivity in a statute, I adopt a definition
taken from Craies on Statute Law (7th ed,. p. 387) which is, I am satisfied based on
sound authority. It is to the effect that a statute is deemed to be retrospective in effect
when it ‘takes away or impairs any vested right acquired under existing laws, or creates a
new obligation, or imposes a new duty, or attaches a new disability in respect to
transactions or considerations already past’.”
It could be argued that the tenants acquired rights under the 2004 Act that meant that the
Notice of Termination that was served on them by post on 2 January 2016 was invalid, as
it did not contain the matters it should have, specifically the date of service. If that is the
case, the application of a subsequent statutory provision allowing for the overcoming of
the slip in relation to the date would be a retrospective application of that legislation.
The general principle in Irish law is that there is a presumption against retrospectivity of a
statute that affects substantive, rather than procedural rights unless there is a “clear and
unambiguous intention to the contrary” as discussed by the Supreme Court in Hamilton v.
Hamilton [1982] 1 IR 466 at 484 and through to the decision of the Supreme Court again
in Minister for Community and Family Affairs v. Scanlon [2001] IESC 1.
It would seem however, there is such an express and unambiguous provision in the 2015
Act. The new section 64A starts with the phrase:
“On the hearing of a complaint under Part 6 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….
There is no necessity for the start of this phrase, namely “On the hearing of a
complaint…” unless it is to circumscribe the time when this rule may be applied. The
legislature could have stated “in a case” or even left the phrase out and re-organised the
sentence.
This phrase must therefore have a meaning. It is made clear in the 2004 Act that a
hearing of the Tribunal is de novo and that therefore the Tribunal hearing in the case is
“the hearing” for the purposes of the section, and that the section was intended to clarify
that the rule can be applied in relation to any document served at anytime and that the
operative time to consider the applicability of the new Section 64A is the date that the
hearing takes place, in this case, 13 June 2016, rather than the date on which the Notice
was served. The Tribunal is satisfied that the other limbs of the section apply, and that
therefore, the slip can be remedied pursuant to the 2015 amendment Act and is a valid
Notice of Termination reading that it was served on 2 January 2016.
7.1 Finding: The tenants owe the Landlord EUR 7, 789 in rent to date being EUR 1,000
from 20 October 2015 to date and EUR 32.88 per day from 20 May to the date of the
hearing being 13 June 2016.
Reasons:
It was agreed between the parties that rent up to 20 June was EUR 8,000 and that the
rent was EUR 1,000 per moth and that no rent had been paid since 20 September 2015.
7.1 Finding: There is no finding against the Landlord for a failure it her duty to the tenants.
Reasons: The tenants alleged that they had no access through the house to the back
garden as the key had been taken by the Landlord. This was disputed. The tenants stated
that they had not complained about this previously and that they had access to the
garden from the side of the house. The Tribunal finds that there was no breach of
Landlord obligations pursuant to section 12 of the 2004 Act.
8. Determination:
Tribunal Reference TR0416-001713
In the matter of Karol Przybylski, Joanna Pakula (Tenant) and Elizabeth Lane
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The Appellant Tenants shall pay the Respondent Landlord EUR 8,789 being
arrears of rent in the amount of EUR 7,789 together with EUR 1,000 in damages for
breach of obligation being non-payment of rent from October 2015 to date. The
Tenants shall make 21 monthly payments of EUR 400 on the 28 day of each month,
commencing on the 28 day of the month immediately following the date of issue of the
Order, followed by one payment of EUR 389 on the 28 day of the following month,
being rent arrears of EUR 7,789 together with damages for breach of obligation in the
amount of EUR 1,000.
2. The enforcement of this Order for such payment of EUR 8,789 will be
deferred and the total sum owing reduced by the cumulative sum paid in the monthly
instalments made by the Appellant Tenants to the Respondent Landlord on each due
date until such time as the total sum of EUR 8,789has 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 weekly payment shall immediately become due and owing to the
Respondent Landlord.
4. The Notice of Termination served on 2 January 2016, by the Respondent
Landlord on the Appellant Tenants, in respect of the tenancy of the dwelling at 268
Morell Way, Monread Road, Naas, Kildare, W91DH7T, is valid.
5. The Appellant Tenants and all persons residing in the above dwelling shall
vacate and give up possession of the above dwelling within 28 days of the date of
issue a Determination Order by the Board.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
27 June 2016.
Signed:
Roderick Maguire Chairperson
For and on behalf of the Tribunal.

Purcell v Lavin

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0416-001719 / Case Ref No: 0116-23687
Applicant Tenant: Lorraine Purcell
Respondent Landlord: Jackie Lavin
Address of Rented Dwelling: Osberstown Mews, Osberstown, Naas , Kildare,
Tribunal: Mary Doyle (Chairperson)
Jack Nicholas, Eoin Byrne
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 07 June 2016 at 2:30
Attendees: Lorraine Purcell (Applicant Tenant)
Darren Smullen (Applicant Tenant)
John Purcell (Witness)
Jackie Lavin (Respondent Landlord)
KenWright (Witness)
In Attendance: DTI Stenographers
1. Background:
On 21 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 02 March 2016. There was no outcome from mediation
Subsequently the following application for referral to a Tribunal was received from the
Applicant Tenant. The grounds of the application are Deposit Retention, Breach of
Landlord’s Obligations and Other.
The RTB constituted a Tenancy Tribunal and appointed Jack Nicholas, Mary Doyle, Eoin
Byrne 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”).
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 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:
The Landlord asked the Tribunal to take in two documents, one a report from a pest
control company and one page detailing costs relating to their claim. The Tenants looked
at the documents and objected to them being taken in. The Tribunal however decided to
take the documents in and informed the Tenants that due weight would be given to their
objection which was that they could not cross examine the pest control company as they
were not in attendance and the fact that the documents were submitted late in the day.
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 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 persons who applied (the
Applicants) would be invited to present their case first, that here 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
Applicants. 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 / affirmed
5. Submissions of the Parties:
5. THE APPLICANT TENANT’S SUBMISSION
The Tenants explained that they were applying to the Tribunal on two grounds:-
Deposit Retention
Breach of Landlord’s Obligations.
They also stated that they were seeking damages for the deposit retention and for Breach
of Landlord’s Obligations.
The tenancy commenced on 9th November 2015, the tenants having paid two months
rent to the Landlords’ agent on 8th November 2015. The subject property was an
apartment adjoining another apartment and the Respondent Landlord’s own house was
also in the grounds. The adjoining apartment was vacant. On 5th December the
remains of an eaten banana and droppings were found by the Tenants. Due to a family
bereavement both tenants were not back in house until 7th December when they
discovered another eaten banana and rat droppings on a counter. They cleaned the
entire kitchen and threw out all food. On 8th December they returned from work and
heard scratching noises beside the sink. After some more minutes there were more
scratching sounds. They rang the Landlord’s witness, told him that they thought it was a
rat and that exterminators would be needed. He said he would inform the Landlord in the
morning. On 9th December at 6.00 am the Tenants saw the rat’s head sticking out from
radiator cover. They immediately sent a text to the Landlord’s witness. At 8.30 am the
Witness responded stating that a Pest Control Company had been contacted and he was
awaiting a call back. Later that morning the Tenants contacted the witness to see if there
is was any progress. There was no progress. Both tenants left the property and stayed
with their respective parents in Carlow and Kildare. They heard nothing further that day
from either the Landlord or the Witness. On 10th December at 3.15pm the Tenants
telephoned the Landlord as they had not heard from anybody and they needed to know
how long they would be out of the apartment. The Landlord responded stating that the
exterminator was cancelled and that her handyman was laying bait and closing up all
holes. The Landlord further stated that the Tenants were not to contact her directly again
but to contact the Agent. The Tenants then emailed the Agent advising him that there
were rats in the dwelling and that the exterminator had been cancelled and they asked for
his advice/help. They received no reply. They decided they would inspect the dwelling
after work to see what had been done. Some spray foam had been used beside the sink
and bait was laid in a bowl in the kitchen. This was the only area that had been attended
to by the handyman. The Tenants saw further rat droppings around radiators and stated
that the handyman had not dealt with these areas. The Tenants advised the Witness that
the matter has not been dealt with to their satisfaction. They stated that the Witness was
rude to them on the telephone and stated that he would inform the landlord in the
morning. They themselves on that day purchased rat traps and expanding foam and used
these as a temporary remedy as all their possession were in the dwelling. They again
stayed with their respective parents on that night. On 11th December the Landlord
contacted them and told then that a pest control company had been contacted who would
survey the area and close up holes. This is the only written communication they
received from the Landlord. The Tenants eventually got the number for exterminator and
talked to him about their concerns. The exterminator advised them that there may be
three rats and that they are located in the attic. He informed the Tenants that he told the
Landlord that the Tenants should not stay in the house until the following Tuesday. They
stayed with their respective parents on 12th, 13th, 14th and 15th December. On 16th
December they arranged to meet the exterminator. The dwelling was full of flies. The
exterminator stated that the rats may be gone, however there were no rats in the traps
and none of the bait was taken. He could not account for the flies. He stated that the
apartment was extremely porous and that rats would chew through expanding foam. He
further advised that the adjoining property was full of rat faeces. He advised them to
thoroughly clean the house. On 17th December they spend 5.5. hours cleaning the
house. They threw out all remaining food and black bags.
On 21st December the second named Tenant was in the dwelling alone and heard noises
and scratching through the expanding foam near the radiator. He immediately texted the
witness for the Landlord and left the property and stayed with his parents. On 22nd
December they contacted the agents to tell him that the rats are back and the Agent
agreed that it was best just to end the contract and that they would receive their full
deposit back. On 22nd December they also spoke to the Witness to tell him that as the
rat problem has not been property resolved and that the apartment was not habitable they
have no choice but to leave and they requested the return of their deposit. The witness
stated that he felt that this would not be a problem but that he would inform the Landlord
and revert back to them. He called back to say that they would return the deposit less
“bills for the time they stayed there”. The Tenants asked him to take the money from the
rent they had paid for December. The witness told them that ” it did not work like that.”
On 23rd December they had no contact with anyone. Later on 23rd December they
phoned the witness and asked for itemised utility bills. The witness stated that the
Landlord was away over the Christmas period and he would revert the following week.
On 26th December the Tenants removed the remainder of their furniture and belongings
from the apartment. Whilst there they met the witness who repeated that he would have
a figure for the utility bills shortly. On 29th December they still had no news and they flew
to the USA. On 1st and 2nd January 2016 they again contacted the Witness and the
Landlord seeking figures for the outstanding bills which they acknowledge they owed.
When asked by the Tribunal what they thought they owed they stated €200 as they had
only occupied the apartment for a little over 3 weeks. On 5th January 2016 they
received a message from the Agent and an invoice from Warrior Actions Ltd in the sum of
€494.70 being €220 for electricity and €274.70 for gas for the duration of their stay in the
apartment. They disputed this amount and said that they could not possibly owe this
amount. The agent was also requesting the keys to be returned. They in turn advised
him that the keys were at the dwelling and they wanted a proper bill from the utility
companies plus a copy of the exterminators’ report.
The Landlord’s Submission
The Landlord in her submission stated that they did everything in their power to remedy
the situation when it occurred. She explained that they had difficulty in getting a pest
control company to deal with the matter quickly and when they did get an appointment the
exterminator could only come after six o’clock in the evening. The Landlord cancelled this
appointment as she said it was the middle of winter and pitch black and nothing could be
seen. She stated that she wanted the pest control company to survey the two rental
properties plus her own house plus the grounds and that this could only be done in
daylight. She sent her handy man as she knew the matter was very urgent. The Landlord
then stated that the exterminator came on three occasions i.e. 11th, 16th and 22nd.
December. The Tribunal asked her were there rats in the dwelling and she stated that
poison was not taken from the bait laid and that there were no rats in traps. The Landlord
stated that the photographs as supplied by the Tenants were not from the subject
dwelling but from the adjoining dwelling. The Tenant strongly refuted this. The Tribunal
asked her if she visited the dwelling and she stated that she had not but she was told that
there was evidence of rats in the adjoining apartment which was vacant. She further
stated that as she also lived beside the dwelling she would not like to think that there was
any vermin around and that as such she treated the matter as urgent.
With regard to the utility bills she advised the Tribunal that the electricity bill comes to the
main house i.e. her own house and that there was a sub meter for the apartments. She
stated that the Tenants were advised about this upon moving in. She informed the
Tribunal that, in fact, she had understated the amounts due. In the documents supplied
at the beginning of the hearing she itemised costs in the sum of €382.79 for gas and €274
for electricity for the duration of the tenancy. The Tenants stated that as they only stayed
in the property for slightly over three weeks that this was excessive. The Tribunal pointed
out to her that as she did not have itemised billing the onus was on her to prove the
amounts as demanded. The Tenants in their evidence stated that they only used the
heating in the evening but the witness for the Landlord stated that he was there one day
and the heat was on. The witness stated that at the beginning of the tenancy he met the
Tenants and both parties had agreed that the gas cylinder was one third full. The
Tenants refuted this and stated that after three weeks in the property they had a meeting
with the witness and the agreement was that the cylinder was one quarter full at that
stage.
The Landlord stated that she did everything that she could to resolve the matter.
6. Matters Agreed Between the Parties
The address of the dwelling is Oberstown Mews, Oberstown, Naas, Co. Kildare
The Tenancy commenced on 9/11/2015
The Rent was €1,000 per month
A Deposit of €1,000 was paid
The Deposit is retained by the Landlord
The Tenants have vacated the apartment
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 are set out hereunder
Finding 1
The Tribunal finds that the Applicant Tenants are entitled to the return of rent in the sum
of €328.70
Reason:
The Tribunal finds that whilst the Landlord initially did take some action with regard to rats
in the apartment when informed on 9th December and the Tenants vacated for five days
on the advice of the Pest Control Co., the problem persisted and was not satisfactorily
resolved. The Tenants again became aware of rats in the premises on 21st December
and informed the Landlord’s agent on the following day, indicating that he would need to
terminate the tenancy as a result of the issue. The Tribunal finds that they were then
entitled to give a seven day notice under Section 68 (2) (a) of the Residential Tenancies
Act as of that date, given that there had been a rodent issue that had not been properly
dealt with by that stage, in breach of Landlord’s obligations, where the failure to deal with
a rodent problem meant there was a risk of serious injury occurring to the Tenants. The
rent was paid up to and including 8th January 2016. For the sake of clarity the rent
payable was at the daily rate of €32.87 and there were 10 days paid in advance from 29th
December 2015 to 8th January 2016. It is clear that the Tenants contacted the Landlord
on the 22nd December indicating that they were vacating the dwelling and that the
dwelling was in fact vacated by the 26th December with keys being left at the dwelling.
The Tribunal accepts that the Landlord’s agent was aware on the 26th December that the
dwelling was vacated. Any failure to ask for the keys at that stage falls on the Landlord,
given that the tenancy had been terminated and the dwelling vacated, and given that the
Landlord’s agent knew that the dwelling had been vacated. The Landlord has not, in any
event, shown any loss as a result of the fact they did not ask for the keys until the 5th
January. As such, the Tribunal is satisfied rent was only owed to the 29th December and
overpaid rent should be returned.
Finding 2
The Tribunal finds that the Respondent Landlord unjustifiably retained the security
deposit of €1,000 except for €200 in respect of bills.
Reason
The Tenants, in their direct evidence, stated that it was their intention to stay for the entire
12 months but they could not remain on in the property as the problem with rats was not
fully resolved and they could not continue to live in the apartment. The Tribunal preferred
the oral and photographic evidence of the Applicant Tenants in this regard. The Landlord
did not submit any objective evidence of the meters in question or any other objective
evidence in respect of bills, the only evidence being documentation prepared by the
Landlord, not issued by a utility provider or gas supplier. In particular, the Landlord could
have submitted photographs of the meter arrangement, showing the sub meter, copies of
the electricity bills for the main house, receipts to show the price of the gas purchased or
photographs of the gauge allegedly on the gas tank. There was no such objective
evidence submitted whatsoever. The onus is on a Landlord to show that they were
entitled to retain any portion of a deposit. In this case, while some utility bills were clearly
owed, the Landlord has not discharged the onus on her to show that more than €200 was
owed in bills, and the evidence submitted by her in this respect was fundamentally
unsatisfactory. Accordingly, the Tribunal is satisfied €800 of the deposit should be
returned.
Finding 3
The Tribunal finds that the Landlord is in breach of her obligations under Section 12 (1)
(b) (i) and (ii), and the Housing (Standards for Rented Houses) Regulations 2008.
Reasons
The Tribunal finds that there was a significant risk posed to the health or safety to the
tenants and that rats in the property caused a significant reduction in the quality of the
tenants living environment. The Tribunal awards €500 damages in this regard. In
particular, from the evidence given, and from the fact it is clear the dwelling could readily
be accessed by rodents, the Tribunal is satisfied that either the floors or the walls were
not kept in good repair, allowing that access. The Tribunal is satisfied that the Landlord
had an obligation under regulation 5 of the Housing (Standards for Rented Houses)
Regulations 2008 to maintain the house in a proper state of structural repair, those
regulations made under section 18 of the Housing (Miscellaneous Provisions) Act 1992
and covered by section 12(1)(b)(i) of the Residential Tenancies Act 2004. As such, a
failure to comply with the obligations is a breach of the Residential Tenancies Act 2004.
The Tribunal is satisfied that the Tenants complied with their obligations and informed the
Landlord of the work needed. The Landlord is responsible for the failure to carry out
adequate work to stop the rodent issue, where the work was carried out by persons
employed on her behalf. It is clear that this was not done adequately and that rodents
continued to access the dwelling, such that the Tenants had to vacate the dwelling at
short notice on the 21st December. Given the inconvenience caused to the Tenants, in
particular having regard to the time of the year and the fact that the Tenants had to move
to separate dwellings, it is clear they suffered significant and foreseeable loss as a result
of the breach of obligations under the Act and the failure of the Landlord to resolve the
rodent issue satisfactorily.
In respect of the payment of the total sum due to the Tenants, the Tribunal is satisfied
that it should be paid inside 14 days, given the absence of any evidence relating to the
means of the Landlord, but having regard to the right of the Tenants to a prompt remedy,
the nature of the loss suffered and the length of time that has passed since the
termination of the tenancy.
8. Determination:
Tribunal Reference TR0416-001719
In the matter of Lorraine Purcell (Tenant) and Jackie Lavin (Landlord) the Tribunal
in accordance with section 108(1) of the Residential Tenancies Act 2004,
determines that:
The Respondent Landlord shall pay to the Applicant Tenant the total sum of €1,628.70
within 14 days of the issue of the Order, being €1,000 for the retained security deposit,
€500 damages for breach of Landlord’s Obligation and €328.70 for return of rent less
€200 owed by the tenants for utility bills.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
09 June 2016.
Signed:
MaryDoyle Chairperson
For and on behalf of the Tribunal.

Sharma v Diskin

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001441 / Case Ref No: 0815-20388
Appellant Tenant: Aditya Sharma, Kripanidhi Sharma
Respondent Landlord: Kevin Diskin
Address of Rented Dwelling: 67 Vanessa Lawns, Celbridge , Kildare, W23XN62
Tribunal: Healy Hynes (Chairperson)
John Keane, Dervla Quinn
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 14 January 2016 at 2:30
Attendees: Aditya Sharma (Appellant Tenant)
Kevin Diskin (Respondent Landlord)
Pauline Diskin (Respondent Landlords Wife)Aditya
Sharma, Tribunal Appellant, 0815-20388,
Tenant,Kevin Diskin, Tribunal Respondent, 0815-
20388, Landlord,
In Attendance: PRTB appointed Stenographer
1. Background:
On 24 August 2015 the then Applicant, now Respondent Landlord made an application
for dispute resolution services to the Private Residential Tenancies Board (referred to as
“the PRTB” in this report).
Pursuant to section 93 of the Residential Tenancies Act, 2004 (referred to as “the Act” in
this report) the PRTB arranged for the matter to be the subject to an adjudication under
section 97 of the Act. An adjudication was held on 14 October 2015 at 10:00 am. The
Adjudicator’s report in relation to the dispute was sent to both parties. The Adjudicator
determined that:
(1) The Notice of Termination served on 17th of July 2015 by the Applicant Landlord on
the Respondent Tenants in respect of the tenancy of the dwelling at 67 Vanessa Lawns,
Celbridge, Co. Kildare W23 XN62 is valid.
(2) The Respondent Tenants and all persons residing in the above dwelling shall vacate
and give up possession of the above dwelling within 14 days of the date of issue of this
Order.
(3) The Respondent Tenants shall pay the sum of €12,637.06 to the Applicant Landlord,
within 14 days of the date of issue of this Order, being rent arrears in respect of the
tenancy of the above dwelling.
(4) The Respondent Tenants shall also pay any further rent outstanding from 14th of
October 2015, at the rate of €950 per month or proportionate part thereof at the rate of
€31.23 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 Tenants shall pay the further sum of €1,000 within 28 days of the
date of this Determination Order being damages for the failure to comply with his
obligations to pay the rent on time in accordance with section 1.
Subsequently a valid notice of appeal was received by the PRTB from the Appellant
Tenants on 09 November 2015.
The PRTB approved referral of the Tenants’ appeal to a Tenancy Tribunal. In accordance
with Sections 102 and 103 of the Act, the PRTB constituted such a Tenancy Tribunal and
appointed Healy Hynes, John Keane and Dervla Quinn as Tribunal members. The Board
appointed Healy Hynes to be the Chairperson of the Tribunal (referred to as “the
Chairperson” in this report). The parties were notified of the constitution of the Tribunal,
were provided with details of the date, time and venue set for the hearing and were
provided with a copy of the Tenancy Tribunal Hearing Procedures.
On 14 January 2016 the Tribunal convened a hearing at 14.30 p.m. at the offices of the
PRTB, Floor 2, O’Connell Bridge House, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
• Welfare Statement Dated 24/11/2015
• Welfare Statement Dated 24/12/2015
4. Procedure:
Opening the Tribunal the Chairperson stated that it had been established to hear an
appeal by the Appellant Tenants against a determination made following an adjudication
held on 14 October 2015 at 10:00 am in the case of a dispute between the Landlord and
the Tenants in respect of a tenancy at 67 Vanessa Lawns, Celbridge, Kildare. 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 Chairperson said that he would be
happy to clarify any queries in relation to the procedures either then or at any stage over
the course of the Tribunal hearing.
The Chairperson 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 Tenants would be invited first to present their
case, including the evidence of any Witness; this would be followed by an opportunity for
cross-examination by the Respondent Landlord; that the Respondent Landlord would
then be invited to present his case, followed by an opportunity for cross-examination by
the Appellant Tenants. He said that members of the Tribunal would ask questions of both
Parties from time to time. He also directed that neither Party should interrupt the other
when direct evidence was being given.
He also said that at the end of the hearing, both the Appellant Tenants and the
Respondent Landlord 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:
The Landlord stated that the initial rent was €1,150 per month but was subsequently
reduced to €950 per month. He said that the rent remained at €950 per month until it was
reviewed to €1,500 per month in October 2015. At the time of commencement of the
tenancy he was of the opinion that the Tenants were making full payments themselves
but later on became reliant on supplementary payments paid by the Department of Social
Protection. The Tenants were supposed to make up the difference themselves but this
later fell into arrears early in the tenancy, an agreement was made to use the deposit to
offset same. The Landlord gave evidence that there were further arrears of rent of €1,183
that had accrued prior to July 2012. Arrears continued and the last payment from the
Tenants other than the amount paid in rent allowance was in June 2012. The Landlord
gave evidence that the rent allowance received for the period from July 2012 to March
2014 inclusive was €689.70 and the rent allowance received from April 2014 to
September 2015 inclusive was €618. The Landlord states he called to the Dwelling on
numerous occasions in relation to the rent arrears and made requests were made to
remedy same to no avail. He states that he made the Tenants aware that if the matter
was not remedied, the tenancy was in danger.
A notice of failure to pay rent was served on 3 July 2015 stating that arrears of
€11,627.80 had accrued and notifying the Tenants that the Landlord was entitled to
terminate the tenancy if the arrears were not paid within 14 days. On foot of this a Notice
of Termination had been served on 17 July 2015 stating a termination date of 14 August
2015 and referring to rent arrears of €11,627.80.
The Landlord stated that a rent review was agreed in May 2015 to €1,500 per month, with
€1,318 per month being paid by the social welfare and the balance being paid by the
Tenant. The Landlord accepted that the rent agreed on foot of the rent review did not
become payable until the payment due in October 2015.
The Tenants remain in occupation; the tenancy is ongoing.
In respect to the PRTB registration documentations, the Landlords had no knowledge of
these and could not explain the figures cited therein. The Landlord could also not explain
the social welfare documentation variation from the figures cited. The Landlord stated
that he was of the opinion that the social welfare documentation had been returned to
the Tenant signed and not filled in. He believed the Tenants completed the figures in
same. In relation to the letting agreement submitted in evidence, it was at variance with
what had been agreed at the time of letting.
In respect to the condition of the Dwelling, the Landlord stated that he carried out works
to the Dwelling and that the photographs submitted were not accurate at the time of the
Tribunal. The Tenants were in agreement with this statement. They did disagree as to
the amount of variance from the time of the photographs. The Landlord further stated that
the kitchen required repainting as it had been blackened by the Tenants’ usage. He also
stated that rubbish has accumulated in the Dwelling.
The Landlord submitted that the rent arrears calculation for rent due up to the 30th
September 2015 was €12,293.50 but accepted on questioning from the Tribunal that he
had received an additional payment of €700 when the rent allowance was revised in
addition to the revised monthly payments of €1,318 from October 2015.
Appellant Tenants’ Case:
The Tenant states the following grounds for appeal
1. Deposit retention. The Tenant stated that the Landlord denied holding the deposit.
There was no agreement to offset same against any arrears.
2. Invalid Notice of termination
3. Other
4. Rent arrears
5. Rent arrears and overholding
6. Standard and maintenance of dwelling
The Tenant states that the rent at commencement of tenancy was set at €850 per month.
The Tenant states he initially paid €2,300 being a deposit of €1,150 and one month’s rent
of €1,150 for the Dwelling , that was on the understanding that social welfare would pay
€1,150 per month for the Dwelling. The Tenant states that he discovered shortly after
agreeing the rent at €1,150 that the rent cap for rent allowance in the area for the
dwelling was €850 – therefore there was an agreement with the Landlord to set the rent
of €850. The Tenant points to the letting agreement, social welfare documentation and
filing with PRTB dated 22nd February 2011 as supporting evidence for same.
The Tenant states that the rent stayed at this level until sometime in 2012. At this time
the Tenant states the rent was reduced to €618 per month. The Tenant points to the
PRTB renewal document dated 11th November 2014 as supporting evidence for same.
The Tenant states that the rent stayed at this level until October 2015 when the rent was
increased to €1,318 per month.
The Tenant states that there are no arrears of rent. He is of the opinion that the Landlord
wishes to gain vacant possession of the Dwelling as it is not of fit standards and he has
been looking for works to be done. The Tenant points to photographic evidence of a
collapsed ceiling following a leak in the dwelling as evidence of the lack of repairs being
carried out by the Landlord.
The Tenant states that a list of works was presented to the Landlord in the first half of
2015 citing an extensive schedule of repairs required.
He said that it was only in March 2015 that calls started from the Respondent Landlord in
respect of any arrears. The Tenant states that the 14 day warning notice for failure to
pay rent arrears dated 3rd July 2015 was the first notice of any arrears. The Tenant
stated that the Landlord had not included a payment he received of €700 when the rent
allowance was revised.
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 the 15 October 2010.
• The Appellant Tenants paid a deposit of €1150.
• The tenancy is still ongoing.
• In the course of the hearing it was also agreed that there was a payment of €700
received by the Landlord when the rent allowance was revised in addition to the monthly
rent allowance payments which the Landlord had not included in his calculation of rent
arrears.
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 therefore are set out
hereunder.
Finding 1: The Tribunal finds that the rent at time of lease commencement was €850 per
month.
Reasons: The signed letting agreement, in conjunction with the PRTB registration
documentation, supports this position. The Landlord in the matter could provide no
supporting documentation for any other rent figure being agreed.
Finding 2: The Tribunal finds that the rent continued at this level until October 2015.
Reasons: Although the PRTB renewal form does state a rent of €618 per month, on the
basis of the evidence presented, the Tribunal is of the opinion that the €618 per month
represented the portion paid by the social welfare payments and that the variation from
€850 per month is a result of a clerical error by whoever filed these papers.
Finding 3: The Tribunal finds that the current rent for the property is in the amount of
€1,500 per month.
Reasons: On the basis of the evidence presented, the tribunal is of the opinion that a rent
review was agreed to increase the rent to €1,500 per month from October 2015 between
the parties and that the amount of the €1,318 per month represented the portion paid by
the social welfare payments.
Finding 4. The Tribunal finds that the arrears of rent at 17th July 2015 are in the amount
of €7,078.30.
Reasons. There is no supporting documentation for rent payments or arrears prior to July
2012. The evidence presented subsequent to this date supports the payment of social
welfare payments only. These payments were in the amount of €689.70 per month from
July 2012 to April 2014 and subsequently €618 per month.
Therefore the tribunal finds that the arrears amount to 21 months of €160.30 (€850 per
month less rent paid of €689.70) being arrears from the 15 July 2012 up to the 14 April
2014 (totaling €3,366.30) and 16 months of €232 (€850 per month less rent paid of €618)
being arrears from the 15 April 2014 to 17th July 2015 (€3,712). Therefore the total due
to the landlord at the time of service of Notice of Termination is in the amount of
€7,078.30.
Finding 5. The tribunal finds that the Notice of Termination as served on 17th July 2015
is invalid.
There is insufficient evidence of the Tenants having been made aware prior to 3rd July
2015 that a breach of obligation to pay rent may result in a notice of termination being
issued. The tenant was given no opportunity to remedy this failure as required under
Section 34 of the act. The Tribunal is not satisfied that the Landlord complied with the
requirements for the termination of a tenancy at No. 1 in the Table to section 34, Part 4 of
the Act which require that the Tenants are given notice that they were in breach of their
obligation to pay rent and notification that the Landlord is entitled to terminate the tenancy
if the Tenants fail to remedy the arrears within a reasonable period of time and the
Tenants do not remedy the arrears within that specified period of time. The requirements
at No. 1 in the Table to section 34 apply where the Tenant has been in occupation of the
dwelling for a continuous period of 6 months and is known as a “Part 4 tenancy”. The
tenancy was a Part 4 tenancy as it commenced on the 15 October 2010. The Landlord
stated that he verbally informed the Tenants in relation to the requirement to pay the rent
arrears prior to the service of the Notice of Rent Arrears and Notice of Termination. The
Tribunal is not satisfied that the Landlord specified any time frame within which the
arrears were to be addressed or clearly communicated to the Tenants that he was
entitled to terminate the tenancy if the arrears were not paid within that timeframe prior to
the service of the Notice of Rent Arrears and Notice of Termination.
Section 57 (b) of the Act provides that the requirements in Part 5 of the Act for a valid
termination of tenancy are in addition to the requirements of Part 4 of the Act. The
Tribunal is not satisfied that the Landlord complied with the requirements of Part 4 of the
Act which is the first step in the process of the service of a valid notice of termination prior
to commencement of the requirements for a valid termination of the tenancy under Part 5
of the Act. The requirements of Part 5 of the Act are the service of a Notice of Rent
Arrears as per Section 67(3) of the Act which was served on the 3rd July 2015 being the
second step in the process and a Notice of Termination satisfying the requirements of
Section 62 and 67(2) (b) (ii) of the Act which was served on the 17 July 2015 being the
third step in the process.
Finding 6. The tribunal finds that the Landlord remains in possession of the deposit of
€1,150 as paid as the time of lease commencement and was not off-set against prior
arrears.
Reasons. As cited in finding 3, above, the tribunal finds insufficient evidence to support
arrears prior to July of 2012. There is also insufficient evidence to support the parties
having agreed to any part of the deposit being used to off-set arrears.
Finding 7. The Tribunal finds that there is no breach of landlord obligations in respect of
the standard & maintenance of the dwelling.
Reasons. The parties are agreed that the Landlord was made aware of repairs required
in February of 2015. The parties are agreed that the Landlord conducted works on foot of
this notice. The parties are agreed that the evidence presented to the Tribunal does not
reflect the current condition of the Dwelling. Therefore there is no evidence to support that
the landlord is in breach of his obligations to maintain the Dwelling as required under the
Act.
Finding 8. The Tribunal finds that there is no breach of landlord obligations in respect to
withholding the deposit
Reasons. As the tenancy is ongoing, there can be no breach of landlord obligations
under the act. The obligation to promptly repay the deposit is not applicable whilst the
tenancy is ongoing.
Finding 9. The tribunal finds that there is no overholding in the matter.
Reasons. As the notice of termination as served herein is deemed invalid, the Tenant is
not overholding on foot of a valid notice of termination.
Finding 10. Arrears exist in the amount of €7,388.30 as of date of tribunal.
Reasons. T. The tribunal find that the additional arrears following the date of service of
Notice of Termination dated the 17 July 2015 due for the period from the 15 August 2015
to 14 October 2015 are in the amount of 2 months at €232 per month (€850 per month
less rent paid of €618) totaling €464, and that arrears from 15 October 2015 to 14
January 2016 being 3 months at €182(€1,500 per month less rent paid of €1,318 )
totaling €546. These sums €464 and €546 when added to arrears accumulated up to 17
July 2015 of €7,078.30 (see finding 4 above) total €8,088.30 and deducting the sum of
€700 which the parties agreed was paid leaves a balance of €7,388.30.
8. Determination:
Tribunal Reference TR1115-001441
In the matter of Aditya Sharma, Kripanidhi Sharma (Tenant) and Kevin Diskin
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The Notice of Termination served on 17th of July 2015 by the Respondent
Landlord on the Appellant Tenants in respect of the tenancy of the dwelling at 67
Vanessa Lawns, Celbridge, Co. Kildare is invalid.
2. The Appellant Tenants shall continue to pay rent at the monthly rate of
€1,500 or proportionate part thereof at the rate of €49.32 per day unless lawfully
varied, and any other charges as set out in the terms of the tenancy agreement, for
each month or part thereof, until such time as they vacate the above dwelling.
3. The Appellant Tenants shall pay €7,388.30 to the Respondent Landlord in
18 consecutive monthly payments of €400 on the 28th day of each month followed by
one payment of €188.30 in the immediately succeeding month commencing on the
28th day of the month immediately following the date of issue of the Determination
Order by the Board being rent arrears of €7,388.30.
4. The enforcement of the Order for such payment of € 7,388.30 will be deferred
and the sum owing reduced by the cumulative sum paid in the monthly installment(s)
made by the Appellant Tenants to the Respondent Landlord at the date of default until
such time as the total sum of €7,388.30 has been paid in full.
5. For the avoidance of doubt any default in the payment of a monthly
installment 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
Respondent Landlord.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
12/02/2016.
Signed:
Healy Hynes Chairperson
For and on behalf of the Tribunal.

Van Buuren v O;Farrell

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0216-001618 / Case Ref No: 1215-22938
Appellant Tenant: Joris Van Buuren
Respondent Landlord: Sean O’Farrell, Caroline O’ Farrell
Address of Rented Dwelling: 3a Brickfield Lane, Killarney Road, Bray , Wicklow,
Tribunal: Mervyn Hickey (Chairperson)
Gene Feighery, Orla Coyne
Venue: Tribunal Room, RTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 20 April 2016 at 10:30
Attendees: Joris Van Buuren (Appellant Tenant)
Sean O’Farrell (Respondent Landlord)
Caroline O’Farrell (Respondent Landlord)
In Attendance: DTI Wordwave Recording Technicians
1. Background:
On 09 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 19 January 2016. The Adjudicator determined that:
1. The Notice of Termination served on 30 July 2015 by the Applicant Landlords on
the Respondent Tenant in respect of the tenancy of the dwelling at 3A Brickfield
Lane, Killarney Road, Bray, Co. 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 7 days of the date of
issue of this Order.
3. The Respondent Tenant shall pay any further rent outstanding from 19 January
2016, at the rate of €520 per month or proportionate part thereof at the rate of €17.10
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 Applicant Landlord shall refund the entire of the security deposit of €520 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 16 February 2016.
The ground of the appeal is Invalid Notice of termination. The appeal was approved by
the Board on 10 March 2016.
The RTB constituted a Tenancy Tribunal and appointed Mervyn Hickey, Gene Feighery
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 29 March 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 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:
1. Eircode website print out recording no match for the 3A Brickfield Lane address.
2. Eircode website print out recording an address of 3A Brickfield Cottages, Brickfield
Lane, Bray, County Wicklow, A98 X688.
3. Print outs from the MyHome website recording “Brickfield Cottage” addresses
(numbers 1 Brickfield Cottages).
4. Utility bills recording the 3A Brickfield Lane address (2 ESB & 1 Bord Gáis).
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.
He 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 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 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 Tenant’s Case:
It was agreed that the tenancy had commenced on 31 March 2007, that the monthly rent
was €520 and that a security deposit of €520 had been paid by the Appellant Tenant and
was retained by the Respondent Landlords. It was also common case that no fixed term
tenancy was in place.
The Appellant Tenant said that a Notice of Termination had been personally served on 30
July 2015 by Mr. Sean O’Farrell on the Appellant Tenant at the rented dwelling and that a
further copy of the Notice had also been served by way of registered post. The Appellant
Tenant commented during the hearing that the Notice had been personally served by Mr.
O’Farrell “in an exemplary way”. The Appellant Tenant also accepted that the Notice
served (and received) by way of registered post had been sent to “3A Brickfield Lane,
Killarney Road, Bray, County Wicklow” (for ease of reference, this version of the dwelling
address will hereinafter be described as “3A Brickfield Lane”).
The termination date stated on the Notice was 27 November 2015. The stated reason for
terminating the tenancy was that the Respondent Landlords were desirous of recovering
possession of the dwelling.
The Appellant Tenant gave evidence of being initially of the understanding that the
address of the rented dwelling was “3A Brickfield Lane, Killarney Road, Bray, County
Wicklow”. In the course of employment in or around October 2007 the Appellant Tenant
had been in a position to carry out an electoral role analysis and claimed that having done
so it was discovered that the actual address for the rented dwelling was “3A the Cottages,
Brickfield Lane, Killarney Road, Bray, County Wicklow” (for ease of reference, this version
of the dwelling address will hereinafter be described as “3A the Cottages”). On being
questioned by the Tribunal as to whether the fact of this discovery had ever been made
known to the Respondent Landlords, the Appellant Tenant replied that it had not been
made known to them prior to the within dispute.
The Appellant Tenant disputed the validity of the Notice of Termination on the basis that
the wrong address was stated thereon. It ought to have been 3A the Cottages whereas it
in fact had been 3A Brickfield Lane.
On being questioned by the Tribunal as to the consequences that were said to flow from
the address being incorrectly stated as alleged, the Appellant Tenant said that the
objection was “technical “in nature and for the purpose of getting “a bit more time”. The
Appellant Tenant stated that it would be “disingenuous” to say otherwise.
The Appellant Tenant did not dispute that post was sent to (and received by the Appellant
Tenant at) 3A Brickfield Lane. Insofar as the Appellant Tenant had utilised the 3A
Brickfield Lane address at any time it was claimed that this was based upon a mistaken
belief that that was the correct address.The Appellant Tenant relied upon two documents
submitted in evidence at the hearing that were not objected to by the Respondent
Landlords. These were printouts from the Eircode site and they recorded the address of
the rented dwelling as being “3A the Cottages…” The Appellant Tenant submitted that
once an address was established in this manner it could not subsequently be changed.
Addressing the documentary evidence relied upon by the Respondent Landlords, the
Appellant Tenant stated that the Bórd Gáis documentation was not determinative of the
address of the dwelling as only the meter point reference number was relevant to the
provider; the address on the bill would depend upon what was given to the provider it was
submitted.
The Appellant Tenant did not want to stay in the rented dwelling and expressed the
intention to leave it as soon as an alternative became available. In this regard the
Appellant Tenant said that there was a lot of expensive furniture in the dwelling which had
been collected by the Appellant Tenant over a 7/8 year period. The Appellant Tenant said
that arrangements were being made to have this furniture moved to a friend’s house but
that this was not a straightforward process.
The Appellant Tenant accepted that the rented dwelling was quite small but insisted that
there were quite a number of items to be moved.
The Respondent Landlords’ Case:
Mrs. O’Farrell gave evidence that there were only two cottages on Brickfield Lane and
these were numbers 1 and 2. The other properties on the lane were individual houses
and there were 5 of these. Mrs. O’Farrell stated that 3A was not a cottage and never had
been a cottage. It was an annex to 3 Brickfield Lane which itself had never been a
cottage. 3A Brickfield Lane had been built in 1999 according to Mrs. O’Farrell.
Mrs. O’Farrell said that all bills went to 3A Brickfield Lane. She said she had had no prior
identification of the Eircode address as this would have been received by the Appellant
Tenant at the rented dwelling. She said that had she known of its contents she would
have challenged the address stated as being incorrect as the Respondent Landlords had
always used 3A Brickfield Lane.
Mrs. O’Farrell stated that no issue regarding the non-delivery of post to the dwelling had
been raised by the Appellant Tenant at any time prior to the within appeal. She relied
upon the documents submitted in evidence by the Respondent Landlords which included
a document completed by the Appellant Tenant in or around 22 March 2007 and in which
the dwelling was identified by the Appellant Tenant as being 3A Brickfield Lane. Other
documents submitted by the Respondent Landlord included utility bills / related
correspondence addressed to 3A Brickfield Lane and emails from the Appellant Tenant to
the Respondent Landlords wherein the Appellant Tenant referred to the dwelling address
as being 3A Brickfield Lane. In one of these emails the Appellant Tenant referred to
having received post at 3A Brickfield Lane.
Mrs. O’Farrell said that the Notice of Termination had issued in July 2015. She disputed
the bona fides of the Appellant Tenant’s stated intention to vacate the dwelling in early
course on the basis that if this was a serious intention the Appellant Tenant would have
already vacated the dwelling. She said there were 19 properties available for rent in the
general area and she could not understand the Appellant Tenant’s delay in vacating the
dwelling. She stated that the dwelling had been let in a furnished condition and that it was
quite small. She therefore disputed that any issues with the removal of furniture could
legitimately be behind the Appellant Tenant’s delay in vacating the dwelling. She felt the
Appellant Tenant’s conduct was not reasonable, that it had been approximately 9 months
since the Notice of Termination had been served and that the Appellant Tenant had been
given greater than the statutory notice period to vacate the dwelling.
The Respondent Landlords stated that they had found the entire process very stressful.
They were self-employed and had had to expend a lot of time on the adjudication hearing
and appeal. They said the belated submissions of the Appellant Tenant regarding the
address were “mischievously” made.
Mr. O’Farrell confirmed that he had personally served the Appellant Tenant at the rented
dwelling and that he had signed the Notice of Termination along with Mrs. O’Farrell.
6. Matters Agreed Between the Parties
(i) The tenancy commenced on 31 March 2007
(ii) The monthly rent was €520
(iii) A security deposit of €520 was paid by the Appellant Tenant and was retained by the
Respondent Landlords
(iv) No fixed term tenancy was in place.
7. Findings and Reasons:
Finding No. 1
The Notice of Termination with a date of service of 30 July 2015 and served by the
Respondent Landlords on the Appellant Tenant is valid.
Reasons:
The tenancy commenced on 31 March 2007. The Appellant Tenant had a Part 4 tenancy
(within the meaning of the Acts), which lasted from 31 March 2007 to 30 March 2011. The
Appellant Tenant then entered into a further Part 4 tenancy pursuant to section 41 of the
Acts, which lasted from 31 March 2011 to 30 March 2015. A further Part 4 tenancy then
commenced on 31 March 2015.
By section 47 of the Act, section 42 is applied to the termination of further Part 4
tenancies. Section 42 of the Residential Tenancies Act, 2004 provides that:
(1) Not later than 6 months from its commencement, the landlord may serve a notice of
termination in respect of a further Part 4 tenancy.
(2) The period of notice given by that notice of termination shall not be less than 112
days.
(3) The means of termination that subsection (1) provides in the period of 6 months
mentioned in that subsection is in addition to, and accordingly does not prevent the
exercise of, the right of termination under section 34 (a) in that period.
The Respondent Landlords served the Notice of Termination on 30 July 2015. This was
not disputed by the Appellant Tenant. This was within the first 6 months of the further Part
4 tenancy that commenced on 31 March 2015 and therefore section 42(1) was complied
with. The notice period given in the Notice of Termination was 120 days and therefore
section 42(2) was also complied with by the Respondent Landlords. Section 42(3)
provides that the means of termination provided for in section 42(1) is in addition to the
right of termination under section 34(a).
The Notice of Termination must also comply with the requirements of section 62 of the
Act. A Notice of Termination to be valid must:
(a) be in writing;
(b) be signed by the landlord or his or her authorised agent or, as appropriate, the
tenant;
(c) specify the date of service of it;
(d) be in such form (if any) as may be prescribed;
(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;
(f) specify the termination date, that is to say, the day (stating the month and year in
which it falls)—
(i) on which the tenancy will terminate, and
(ii) on or before which (in the case of a termination by the landlord) the tenant must
vacate possession of the dwelling concerned, (and indicating that the tenant has the
whole of the 24 hours of the termination date to vacate possession); and
(g) state that any issue as to the validity of the notice or the right of the landlord or
tenant, as appropriate, to serve it must be referred to the Board under Part 6 within 28
days from the date of receipt of it.
The Tribunal is satisfied that each of these requirements has been met by the
Respondent Landlords.
The Tribunal would pause at this juncture simply to note that sections 42 and 62 of the
Act are silent on the issue of the address of the dwelling in a Notice of Termination.
Having found that the Notice of Termination served by the Respondent Landlords on the
Appellant Tenant complies with the requirements of both sections 42 and 62 of the Act, it
is necessary to address the issue raised by the Appellant Tenant on appeal namely that
the (allegedly incorrect) reference to 3A Brickfield Lane as the dwelling address in the
Notice (instead of 3A the Cottages) rendered the Notice invalid.
Section 6(1) of the 2004 Act (as amended) provides that:
A notice [or other document] required or authorised to be served or given by or under this
Act shall, subject to subsection (2) [which has no application on the facts of this case], be
addressed to the person concerned by name and may be served on or given to the
person in one of the following ways:
(a) by delivering it to the person;
(b) by leaving it at the address at which the person ordinarily resides or, in a case in
which an address for service has been furnished, at that address;
(c) by sending it by post in a prepaid letter to the address at which the person ordinarily
resides or, in a case in which an address for service has been furnished, to that address;
(d) where the notice relates to a dwelling and it appears that no person is in actual
occupation of the dwelling, by affixing it in a conspicuous position on the outside of the
dwelling or the property containing the dwelling. [Emphasis added].
A number of points are worthy of note here. The first is that section 6 stipulates only that
the notice shall be addressed to the person concerned by name. The second point is that
it is quite clear that the emphasis of this section is on notice being given / delivered to the
person concerned. The third point is that only one of the alternative modes of service
needs to be effected.
On the facts of this case, the Respondent Landlords complied with sections 6(1)(a) and
(c) of the Act. Indeed, the Appellant Tenant accepted that personal service and service by
prepaid post had both been effected by the Respondent Landlords at the rented dwelling.
There can be no doubt but that the Appellant Tenant was served with the Notice of
Termination in good time.
There Tribunal is quite satisfied on the evidence given by the parties that as and from the
date of service of the Notice of Termination the Appellant Tenant was aware that the
Respondent Landlords were seeking to terminate the tenancy and that the Appellant
Tenant was in no doubt as to which tenancy that was.
The objection was, quite fairly and honestly, acknowledged by the Appellant Tenant to be
a “technical” one advanced for the purpose of buying time. It was an objection that was
not advanced at the adjudication stage. It was confined to the address stated on the
Notice of Termination being incorrect. This was a stand-alone objection unconnected with
any other argument going to the invalidity of the notice. It was an objection that was
acknowledged by the Appellant Tenant to be devoid of any material consequence.
For the foregoing reasons, the Tribunal is satisfied that the Notice of Termination with a
date of service of 30 July 2015 is valid.
Finding No. 2
The Appellant Tenant is overholding.
Reasons:
The tenancy was validly terminated by the Respondent Landlords on 27 November 2015.
The Appellant Tenant has been overholding thereafter.
8. Determination:
Tribunal Reference TR0216-001618
In the matter of Joris Van Buuren (Tenant) and Sean O’Farrell, Caroline O’ Farrell
(Landlord) the Tribunal in accordance with section 108(1) of the Residential
Tenancies Act 2004, determines that:
1. The Notice of Termination served on 30 July 2015 by the Respondent
Landlords on the Appellant Tenant in respect of the tenancy of the dwelling at 3A
Brickfield Lane, Killarney Road, Bray, County Wicklow (also known as 3A the
Cottages, Brickfield Lane, Killareny Road, Bray County Wicklow) 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 7 days of the date of issue
of this Order.
3. The Appellant Tenant shall pay any further rent outstanding from 20 April
2016 at the rate of €520 per month or proportionate part thereof at the rate of €17.10
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 Appellant
Tenant vacates the above dwelling.
4. The Respondent Landlords shall refund the entire of the security deposit of
€520 to the Appellant Tenant upon the Appellant 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
12 May 2016.
Signed:
Mervyn Hickey Chairperson
For and on behalf of the Tribunal.

 

Dunne v Murnin

Private Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR1115-001449 / Case Ref No: 0915-20717
Appellant Tenant: Michael Dunne (Deceased), Alan Dunne
Respondent Landlord: Pauline Murnin
Address of Rented Dwelling: 59 Old Kilmainham, Dublin 8, D08W0H2
Tribunal: Mervyn Hickey (Chairperson)
Louise Moloney, John Tiernan
Venue: Tribunal Room, PRTB, 2nd Floor, O’Connell Bridge
House, D’Olier Street, Dublin 2,
Date & time of Hearing: 13 January 2016 at 2:30
Attendees: Michael Dunne and Alan Dunne
(Appellants)
Bríd Smith, Representative on behalf of the
Appellants
Pauline Murnin, Respondent.
In Attendance: DTI Global Trading as “Wordwave” Recording
Technicians
1. Background:
On 07 September 2015 the Tenant made an application to the Private Residential
Tenancies Board (“the PRTB”) pursuant to Section 78 of the Act. The matter was referred
to an Adjudication which took place on 21 October 2015. The Adjudicator determined
that:
The PRTB have no jurisdiction in respect of the dispute applications, submitted by
the above parties, in respect of the tenancy of the dwelling at 59 Old Kilmainham,
Kilmainham, Dublin 8
Subsequently the following appeal was received from the Tenant on 13 November 2015.
The grounds of the appeal were Standard and maintenance of dwelling, Damage in
excess of normal wear and tear, Unlawful termination of tenancy (Illegal eviction). This
appeal was Approved by the Board on 24 November 2015.
The PRTB constituted a Tenancy Tribunal and appointed Louise Moloney, Mervyn
Hickey, John Tiernan 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 13 January 2016 the Tribunal convened a hearing at Tribunal Room, PRTB, 2nd
Floor, O’Connell Bridge House, D’Olier Street, Dublin 2.
2. Documents Submitted Prior to the Hearing Included:
1. PRTB File
3. Documents Submitted at the Hearing Included:
1. Email from Kevin Street Garda Station to Bríd Smith dated 8 January 2016.
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 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
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 also reminded the Parties that as a result of the Hearing that day, the Board would
make a Determination Order which would be issued to the parties and could be enforced
by either of the Parties or in some cases by the Board of the PRTB at its discretion. He
also advised the parties that the Tribunal process was the final step in the dispute
resolution process unless appealed to the High Court on a point of law only [reference
section 123(3) of the 2004 Act].
He asked the Parties if they had any queries about the procedure and addressed the
queries raised.
The parties were sworn in.
5. Submissions of the Parties:
The Appellants’ Case:
The evidence of Bríd Smith:
Ms. Smith gave evidence that the Appellants (Michael Dunne Junior and Alan Dunne)
had approached her for help in early September 2015. She stated that they had been in
correspondence with the Respondent. She advised them to speak with their local social
welfare office regarding rent supplement. She stated that approximately 7-10 days after
this she received a phone call from Alan Dunne. She said that he was in a panicked state
during this phone call and he informed her that the dwelling was being raided. He told her
that he had locked himself into his bedroom. Ms. Smith stated that she thereafter
contacted An Garda Síochána who came to the dwelling. Ms. Smith herself said she
attended at the dwelling at this time. She said she observed what she referred to as an
“eviction” of the Appellants taking place. Her evidence was that 5 or 6 “contractors” – one
of whom had identified himself as the Respondent’s brother – were in the process of
removing the Appellants’ belongings from the dwelling and putting them in bags outside
of the dwelling. Ms. Smith said that she had asked An Garda Síochána to stop the
contractors on behalf of the Appellants. She informed them that at the time a dispute had
been referred to the PRTB by the Appellants. She said that eventually she persuaded the
4 or 5 members of An Garda Síochána present to intervene.
Ms. Smith said the locks had been changed on the front door and the gas and electricity
had been disconnected. Eventually, with the intervention of An Garda Síochána, she said
the original lock was placed back on the door. She said the Appellants had had to
arrange to have an electrician restore the electricity themselves as the Respondent’s
electrician had not attended to the matter. Ms. Smith stated that the members of An
Garda Síochána present warned the contractors to stay away from the Appellants. She
said the Appellants thereafter returned their items to the dwelling.
Ms. Smith disputed the contention of the Respondent that a contractor had attended at
the dwelling on 16 September. She stated her belief that the events in question had
occurred on 9 September 2015. She gave evidence that she had found the “contractors”
to be intimidating. She disputed the contention of the Respondent that the dwelling had
been left in a state of disrepair and that this had been observed by the contractors.
Rather, she said the damage to the dwelling – which she said she had observed – was
caused by the contractors. On being questioned by the Tribunal, Ms. Smith confirmed she
had not observed the contractors causing damage to the dwelling but she believed that
the damage she had observed had been caused by them and not by the Appellants. Ms.
Smith made reference to a PULSE report of An Garda Síochána but no such report was
submitted in evidence. Ms. Smith did submit a copy email from Kevin Street Garda
Station wherein it was confirmed by a member of An Garda Síochána that Gardaí had
attended at the dwelling following a call regarding “an alleged eviction” on 9 September
2015 and that details had been recorded on the PULSE system.
Ms. Smith stated her belief that the Appellants were raising a “legitimate issue” regarding
the non-payment of rent and that they had tried to sort matters out. She stated that it was
difficult for them to obtain alternative accommodation as their experience, like her own as
a Councillor, was that Landlords were unwilling to accept a tenant in receipt of rent
supplement.
The Evidence of Michael Dunne:
Michael Dunne Junior gave evidence that his younger brother had been hospitalised as a
consequence of the contractors’ attendance at the dwelling on 9 September 2015. He
said that he, Alan Dunne and their father (Michael Dunne Senior, deceased) had lived
continuously in the dwelling since the commencement of the tenancy in 2002. He gave
evidence that in or around early September 2015 he had spoken with the Respondent
regarding the situation with the Appellants in the dwelling. He said that on one occasion
while he and Alan Dunne were sleeping in the dwelling on a Sunday morning, a man had
entered the dwelling. He said the man had threatened Alan Dunne. He said that 3 or 4
days after this the same man returned to the dwelling with other men causing damage to
the dwelling and assaulting his youngest brother. He said these men had broken the
electricity box in the dwelling and that it could not be repaired by an electrician,
necessitating the calling out of the electricity company.
Michael Dunne Junior stated that the Respondent was aware that he, Alan Dunne and
their father had been living in the dwelling at all relevant times. He said the Respondent
would have signed rent supplement forms presented to her by Michael Dunne Senior in
respect of himself and his sons. He said this would have been the case since the tenancy
commenced. On being questioned by the Tribunal, Michael Dunne Junior confirmed that
the total payment received by the family from the State was €600 per month and that
Michael Dunne Senior, Michael Dunne Junior and Alan Dunne would top-up the balance
of the monthly rent by the payment of an additional €600 as between them. This, he said,
was the position that obtained until his father died with the total amount being paid
directly to the Respondent’s bank account.
The Tribunal questioned why the Appellants had stopped paying rent. Michael Dunne
Junior replied by stating that following his father’s death all rent supplement payments
had ceased. The Tribunal queried the position in respect of the top-up and Michael
Dunne Junior replied by stating that this too had been stopped. The only explanation he
gave for this was the cost of his father’s funeral. He said that he had gone to the social
welfare office 2 weeks after his father’s death but had never been provided with the
relevant documentation to be signed. This he said, was why he had not asked the
Respondent to sign such documentation. He said the documentation was not
downloadable but later admitted he had not in fact tried to download it.
Regarding the rent supplement forms themselves, Michael Dunne Junior said they came
to the dwelling “every so often”. He said his father had dealt with them prior to his death,
bringing them to the Respondent’s home to be signed. Michael Dunne Junior said he had
only gone on two occasions to the Respondent’s home with the forms to be signed. The
last such occasion had been approximately 2 years ago he said. Following this
attendance he said he had been told by the Respondent not to attend at her home again
as she found him intimidating. This, he said, had arisen from an incident during which he
said that he himself had been threatened by the Respondent’s accountant.
The Tribunal asked about the rent supplement documentation which had been specifically
referenced in the Appellants’ appeal documents and which, it was stated, would prove
that the Respondent knew and agreed to the Appellants being tenants of the dwelling.
Ms. Smith stated in reply that there had been problems obtaining this documentation.
Regarding the provisions of section 39 of the Act and the Appellants electing in writing to
become tenants following their father’s death, Michael Dunne Junior said he and his
brother were unaware of this requirement and had assumed that they were co-tenants
with their father. Michael Dunne Junior confirmed to the Tribunal that both prior to and
subsequent to his father’s death no request in writing had ever been made by himself or
Alan Dunne to the Respondent to become tenants.
Regarding the alleged agreement of the Respondent at all material times to Michael
Dunne Junior and Alan Dunne being co-tenants, Michael Dunne Junior said that at the
time the original tenancy agreement had been entered into, the Respondent’s Agent had
said to Michael Dunne Senior that only one name was needed on the tenancy agreement.
He said that the Respondent was aware at all material times that he and his brother Alan
were going to reside in the dwelling.
On the issue of the outstanding rent and the alleged agreement of the Appellants that
they would leave the dwelling, Michael Dunne Junior stated that in the week prior to 9
September 2015 he knew the Appellants had to vacate the dwelling as they had not paid
rent nor were they paying rent at that time.
Michael Dunne Junior confirmed that he was 31 years of age in 2002. He confirmed the
evidence of Bríd Smith. He confirmed that as of the date of hearing the issues with the
rent supplement forms had yet to be resolved and he said that this had led to the dispute
with the Respondent. While acknowledging that the Appellants had to vacate the dwelling
due to the non-payment of rent, he said they had nowhere to go. He said he had made
efforts to find suitable alternative accommodation without success. On being questioned
by the Tribunal he identified these efforts as being the following: looking at the DAFT
website on a number of occasions; sending 3 or 4 emails; and having telephoned in
respect of one property in Rathmines. He explained that in his experience Landlords were
not accepting tenants in receipt of rent supplement.
On cross-examination by the Respondent Michael Dunne Junior was asked about the
attempts made by the Appellants to formalise their relationship with the Respondent. In
answer he stated that in June 2015 he had informed the Respondent that he was going to
the social welfare office to “sort things out”. On being questioned by the Tribunal
regarding him having earlier said he had attended at the social welfare office 2 weeks
after his father’s death he clarified that he informed the Respondent in June 2015 that he
had already attended but that matters would be sorted out. He said that in or around this
time he was exploring the possibility of becoming a tenant with his brother. The
Respondent asked Michael Dunne Junior about an email he had sent her on 5 June 2015
in which he had informed her for the first time that his father had died in April. She
submitted that his version of events regarding June 2015 was not credible. The
Respondent put it to Michael Dunne Junior that their first face to face contact was on 29
August 2015. He did not deny this. Regarding the forms for rent supplement, the
Respondent asked Michael Dunne Junior why no forms had been presented to her for
signature. He replied by stating that he never in fact received the forms.
The Evidence of Alan Dunne:
Alan Dunne addressed the incident of 9 September 2015 at the dwelling. He said that one
of the contractors was the same man who had entered the dwelling while he slept there a
number of days prior to this. On the man’s first attendance at the dwelling he was said to
have told Alan Dunne he was a “contractor” and had referred to a letter sent to the
Appellants by the Respondent. Alan Dune said that this man had let himself into the
dwelling with a key on the first occasion while he and Michael Dunne Junior were
sleeping in the dwelling.
He said that he had mentioned to the contractors who attended at the dwelling on 9
September 2015 the fact that there was then a dispute before the PRTB. He said that
they were dismissive of this. He said they began putting the Appellants’ items in bags out
the front of the dwelling.
Regarding rent, he stated that he had asked the Respondent to sign a form in August
2015 when she had called to the dwelling. He accepted that when he asked her to sign it
he did not in fact have it in his possession. He also stated that this was the first time he
had done anything regarding the issue of rent. He acknowledged that because the
Appellants were not paying rent they had to vacate the dwelling. In response to a
question from the Tribunal regarding the efforts he had made to deal with the situation,
Alan Dunne stated that he had looked on the DAFT website on a number of occasions
but had experienced difficulties as Landlords were unwilling to accept tenants in receipt of
rent supplement.
Alan Dunne confirmed that he was 23 years of age in 2002. He confirmed the evidence of
Bríd Smith. He confirmed the evidence of Michael Dunne Junior regarding their status as
co-tenants and also that they had not elected in writing to the Respondent at any time to
become tenants.
Alan Dunne was cross-examined by the Respondent. She asked him when he had first
attended with Ms. Smith. He replied by stating he went to Ms. Smith for advice after the
Respondent’s brother had attended at the dwelling without prior notice. The Respondent
asked him why he had never presented her with any form to sign in respect of rent
supplement. He stated that he had gotten a form when his rent supplement was cancelled
and had asked the Respondent to sign it. He couldn’t recall when this was
notwithstanding his earlier evidence that in August 2015 he said he had asked the
Respondent to sign the form at the door of the dwelling but that she had refused due to
the non-payment of rent. He said that the Respondent had also wished to deal with
Michael Dunne. Alan Dunne stated his belief that the Respondent was not going to sign
the form but acknowledged that when he asked her to sign it he did not actually have it in
his possession.
The Appellants concluded by stating only that they wanted the matter to be brought to an
end.
The Evidence of Pauline Murnin:
The Respondent referred to the documentation submitted by her and in particular certain
emailed correspondence which she said evidenced a reasonable approach by her over a
period of months when the Appellants were not paying rent and also a lack of legitimate
engagement by them. She said that rent was always paid erratically and was usually late.
Rent had fallen into significant arrears and in October 2013 when the arrears were
€5,700.00 she reached a “gentleman’s agreement” with Michael Dunne Senior and she
waived her entitlement to seek to recover this sum. As of the start of 2014, she said that
Michael Dunne Senior had a “clean slate” in respect of rent.
By May 2015 it she said it had become clear the rent for April had not been paid. She
referred to the many attempts to address this issue with the Appellants and she relied
upon the documents submitted and on file with the PRTB in this regard.
Regarding the contention made by the Appellants that they were co-tenants with their
father at all material times, the Respondent said that her Agent had dealt with Michael
Dunne Senior in 2002 and that she had not been sure of who was living in the dwelling
aside from him. She said she only met Michael Dunne Senior in 2007. She met Michael
Dunne Junior for the first time in mid-2012. She said at that point it was clear he was
living in the dwelling. She said she had not met Alan Dunne prior to August 2015. She
explained the apparent conflict between this asserted lack of knowledge and the admitted
fact that she had signed rent supplement forms for Michael Dunne Senior (which on the
Appellants’ case related also to Alan Dunne) on the basis that her Agent had dealt with
the tenancy prior to 2007 when her relationship with him was ended. She admitted
signing rent supplement forms for Michael Dunne Senior. She had no recollection of
signing any form in respect of Alan Dunne however but she did not definitively rule out the
possibility that she may have signed such a form. She said she would not have read the
forms provided to her by Michael Dunne Senior in great detail. She did not recall ever
being requested to sign in respect of Alan Dunne by Michael Dunne Senior nor did she
recall being requested to sign forms in respect of Michael Dunne Junior.
On being questioned by the Tribunal, the Respondent denied that Alan Dunne had asked
her to sign a rent supplement form in August 2015. She said that had he done so she
would “gladly” have made efforts to resolve matters and referred to an email sent by her
to Michael Dunne Junior on 21 August 2015 and a letter dated 31 August 2015 as
evidence of this. She referred to the financial difficulties she had experienced due to the
non-payment of her mortgage as a consequence of the non-payment of rent by the
Appellants.
The Respondent said that in or around 10 August 2015 she had given the Appellants
notice to vacate the dwelling by 21 August 2015. This time period was unilaterally
extended by her to 28 August 2015 and again subsequently to 3 September 2015. She
said that on 29 August 2015 Michael Dunne Junior had confirmed to her in person that he
would be vacating the dwelling by Thursday 3 September 2015. She said that he told her
was going to the Social Welfare office on Tuesday 1 September to try and resolve the
issue in respect of outstanding rent. Subsequently, she said Michael Dunne had informed
her that he had in fact missed his appointment in the Social Welfare office. The
Respondent decided at this point that there was no prospect of the matter being resolved.
The Respondent admitted that her brother had attended at the dwelling during September
2015 following her request of him to do so. She accepted that she may have been
incorrect when stating in her papers that this was on 16 September 2015. She described
her brother as a “contractor”. She said she had asked him to inspect the dwelling to see
what state of repair it was in and to estimate the cost of any necessary remedial works.
This was on the basis that she had asked Michael Dunne Junior to vacate the dwelling by
28 August 2015. She had subsequently extended the time to 3 September and felt this
may have been why her brother attended the dwelling while the Appellants were still
known by her to be in occupation. She admitted she was aware that an “absolute
argument” had taken place at the dwelling and involving her brother and the Appellants.
She said she had had no contact from An Garda Síochána in this regard however and
she was unaware of any Garda investigation. On being questioned by the Tribunal as to
why her brother would have returned to the dwelling on a second occasion when he
would have known the dwelling was still being occupied, the Respondent said that she
had told him the dwelling would be empty by 3 September 2015, whereas the incident
complained of on his second attendance was said by the Appellants to have occurred on
9 September 2015.
On the issue of jurisdiction, the Respondent said that there was no formal rental
arrangement in place. She said she had tried to reach an agreement with the Appellants
without success. As a consequence, she said the Appellants were in the dwelling illegally.
She said that they had at no time elected in writing to take over their father’s tenancy after
his death. When asked by the Tribunal regarding her claim for rent in the context of what
she alleged was illegal occupation by the Appellants of the dwelling, she replied by
stating that this claim may have been based upon a lack of clarity on her part regarding
the precise position in law that obtained. When asked by the Tribunal what she was
asking it to do she replied by stating that she wanted the Tribunal to direct the Appellants
to vacate the dwelling.
The Respondent was cross-examined by Ms. Smith who asked her about the extent of
her knowledge of the incident on 9 September 2015 at the dwelling involving her brother.
Ms. Smith said that the Respondent had known of the extent of this incident at the
adjudication hearing. The Respondent responded by stating that she was aware that a
“robust verbal argument” had taken place and involving her brother, that An Garda
Síochána had been called and that their intervention had been required to resolve
matters. Ms. Smith questioned the Respondent about the alleged physical altercation that
had occurred involving the Respondent’s brother. The Respondent said that she was not
aware of any physical altercation nor was she aware of the alleged Garda PULSE report.
Ms. Smith, on being questioned by the Tribunal, acknowledged that she herself had not
observed any physical altercation at the dwelling and involving the Respondent’s brother.
Ms. Smith put it to the Respondent that she had ended her relationship with her Agent in
2004 and not 2007 as she had stated. The Respondent denied this and said that she
knew she had ended the relationship in 2007 as it coincided with her daughter’s birth and
a time when she was seeking to reduce her costs.
The Respondent concluded by submitting her approach had at all times been a
reasonable one and that she herself had experienced financial pressures as a
consequence of the Appellants’ conduct. She said she had acted in good faith but that the
Appellants had taken advantage of her. She said the Appellants had made no attempt to
resolve matters and never clearly set out their position at any time.
6. Matters Agreed Between the Parties
1. The address of the dwelling is 59 Old Kilmainham, Kilmainham, Dublin 8, D08W0H2.
2. The tenancy commenced on 29 October 2002 with Michael Dunne Senior as tenant.
3. The rent was €1200 per month payable monthly in advance the 29th day of each
month.
4. A security deposit of €1,200.00 had been paid by Michael Dunne Senior and was
retained by the Respondent.
5. The last payment by way of rent was made in June 2015 and was in respect of the
rental period up to 28 April 2015.
6. No rent had been paid in respect of the period from 29 April 2015 to the date of the
appeal hearing (13 January 2016).
7. The former tenant, Michael Senior died intestate on 24 April 2015.
8. At no time have either of the Appellants written to the Respondent electing to
become tenants pursuant to the provisions of section 39 of the Act.
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 No. 1
1. The Appellants were not co-tenants with the late Michael Dunne prior to his death on
24 April 2015.
Reasons:
The Tribunal is of the view that there was insufficient evidence submitted by or on behalf
of the Appellants to establish on the balance of probabilities that they were, prior to 24
April 2015 (the date of their father’s death), accepted by the Respondent as co-tenants
with Michael Dunne Senior.
Notwithstanding their statement in their appeal application form that they could “prove”
that the Respondent had accepted them both as co-tenants with their late father and the
recitation therein of specific documentation from the Department of Social Protection that
they intended to submit in support of their appeal, no such documentary evidence was
submitted by them. In circumstances where they were alleging that such forms had been
signed by the Respondent over a period in excess of 12 years, the Tribunal considers it
highly significant that not one such form was submitted in evidence.
The oral evidence of the Appellants to the Tribunal revealed very limited involvement by
Michael Dunne Junior with the Respondent prior to his father’s death and in the case of
Alan Dunne, no involvement at all. The evidence of the Respondent was consistent with
this position. The Appellants were not named in any of the written agreements executed
through the many years of the tenancy and each referred to Michael Dunne Senior as the
sole tenant. Notwithstanding their assertions that they contributed financially towards the
rent payments made by their late father prior to his death, the Appellants did not submit
any documentary evidence whatsoever to support this assertion.
Finding No. 2
2. The parties do not have standing to refer the within disputes to the PRTB.
Reasons:
The Tribunal is satisfied on the evidence before it that after 24 April 2015 the parties did
not, as a matter of fact, enter into the relationship of Landlord and Tenant at any time.
Indeed, the Respondent’s position was that the Appellants were illegal occupants of the
dwelling.
Section 39 of the Act states that:
1) Subject to subsections (2) and (4), a Part 4 tenancy shall terminate on the death of the
tenant;
(2) Where the 2 conditions specified in subsection (3) are satisfied— (a) subsection (1)
does not apply, and (b) the Part 4 tenancy concerned, accordingly, continues in being,
subject to the other provisions of this Chapter, for the period for which it would otherwise
have continued in being had the tenant concerned not died.
(3) Those conditions are— (a) the dwelling, at the time of the death of the tenant
concerned, was occupied by—(i) a spouse of the tenant, (ii) a person who was not a
spouse of the tenant but who cohabited with the tenant as husband and wife in the
dwelling for a period of at least 6 months ending on the date of the tenant’s death, (iii) a
child, stepchild or foster child of the tenant, or a person adopted by the tenant under the
Adoption Acts 1952 to 1998, being in each case aged 18 years or more, or (iv) a parent of
the tenant, and (b) one or more than one of the foregoing persons elects in writing to
become a tenant or tenants of the dwelling…
The Appellants, being children of the late Michael Dunne Senior were, if they were both in
occupation of the dwelling at the time of their late father’s death, each entitled to write to
the Respondent electing to become a tenant of the dwelling. On the evidence of all of the
parties however, at no time prior to the hearing of this appeal did they do so and
consequently, pursuant to the provisions of section 39(1) of the Act (which on the facts is
not disapplied by sub-sections (2) or (4)), the tenancy of the dwelling at 59 Old
Kilmainham, Kilmainham, Dublin 8, D08W0H2, terminated on 24 April 2015 being the
date of death of the late Michael Dunne who died intestate.
As the relationship of landlord and tenant does not therefore exist between the parties
and as the Appellants are not personal representatives of Michael Dunne Senior, neither
side in this case had standing under the provisions of the Act to bring their dispute
application against the other.
8. Determination:
Tribunal Reference TR1115-001449
In the matter of Michael Dunne (Appellant), Alan Dunne (Appellant) and Pauline
Murnin (Respondent Landlord) the Tribunal in accordance with section 108(1) of
the Residential Tenancies Act 2004, determines that:
The Tribunal upholds the finding of the Adjudicator that the PRTB does not have
jurisdiction in respect of the dispute applications, submitted by the above parties, in
respect of the tenancy of the dwelling at 59 Old Kilmainham, Kilmainham, Dublin 8.
The Tribunal hereby notifies the Private Residential Tenancies Board of this
Determination made on 2 February 2016.
The Tribunal hereby notifies the Private Residential Tenancies Board of this Determination
made on 02 February 2016.
Signed:
Mervyn HickeyChairperson
For and on behalf of the Tribunal.

Canty -v- Private Residential Tenancies Board

 

 

[2008] IESC 24 (30 April 2008)
URL: http://www.bailii.org/ie/cases/IESC/2008/S24.html
Cite as: [2008] 4 IR 592, [2008] IESC 24
[New search] [Context] [Printable version] [Help]

Judgment Title: Canty -v- Private Residential Tenancies Board

Neutral Citation: [2008] IESC 24

Supreme Court Record Number: 271/07

High Court Record Number: 2006 5195 P

Date of Delivery: 30 April 2008

Court: Supreme Court

Composition of Court: Kearns J., Macken J., Finnegan J.

Judgment by: Kearns J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Kearns J.
Appeal allowed
Macken J., Finnegan J.

Outcome: Allow Appeal

 

THE SUPREME COURT

Kearns J.
Macken J.
Finnegan J.

[Record No. S.C. 271/07]

IN THE MATTER OF THE RESIDENTIAL
TENANCIES ACT 2004
BETWEEN
JACK CANTY
SIZE=4 FACE=”Times New Roman”>
APPELLANT

AND

PRIVATE RESIDENTIAL TENANCIES BOARD

FIRST NAMED RESPONDENT

AND

DAVID CONNOLLY

SECOND NAMED RESPONDENT

JUDGMENT of Mr. Justice Kearns delivered the 30th day of April, 2008

This is an application brought on behalf of the first named respondent seeking an order striking out the appeal brought by the appellant from the judgment and order of the High Court (Laffoy J.) on 8th August, 2007. The appellant’s appeal purported to challenge various rulings made by Laffoy J. in the High Court. He also sought to put in issue as being unconstitutional various provisions of the Residential Tenancies Act 2004.
This court, in an ex tempore ruling already delivered herein on 2nd April, 2008 determined it had no jurisdiction to hear the appeal by reason of the provisions of Section 123(4) of the Residential Tenancies Act, 2004. That sub-section provides:-
“The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive.”
The court, however, reserved judgment on whether or not the appellant was nonetheless entitled to appeal the order for costs made against him by Laffoy J. in respect of the costs of the respondent and notice party which were awarded against him. The appellant contends that the wording of Section 124 is not sufficiently clear or specific to exclude the jurisdiction of this Court to entertain an appeal confined to the issue of costs.
By way of background, the second named respondent agreed to let to the appellant a dwelling house in Crosshaven, Co. Cork by a tenancy agreement dated 24th September, 2004. In 2005 a number of disputes arose in relation to the appellant’s tenancy which came before the first named respondent. Following a number of hearings various determinations of the Board were formalised in a Determination Order dated 19th April, 2006. A further Determination Order was made on 6th October, 2006.
The appellant sought to challenge these orders pursuant to s.123 of the Residential Tenancies Act, 2004 which provides:-
“(2) A determination order embodying the terms of a determination of the Tribunal shall, on the expiry of the relevant period, become binding on the parties concerned unless, before that expiry, an appeal in relation to the determination is made under subsection (3).
(3) Any of the parties concerned may appeal to the High Court, within the relevant period, from a determination of the Tribunal (as embodied in a determination order) on a point of law.
(4) The determination of the High Court on such an appeal in relation to the point of law concerned shall be final and conclusive.”
The only question before the Court therefore is whether or not these statutory provisions are to be interpreted as denying a right of access to the appellant to this Court to argue the appropriateness or otherwise of the costs order made against him in the High Court.
It is clear from the wording of s.123 of the Residential Tenancies Act, 2004 that no appeal lies to the High Court from a determination of the tribunal on the merits or on the facts. It is a limited entitlement to appeal on a point of law only. In exercising its jurisdiction, the High Court did not purport to determine points other than various points of law which had been canvassed by the appellant. Its ruling therefore is “final and conclusive”.
Can a costs order in these circumstances have a quality or character which puts it outside the determination of the point of law so as to permit a limited appeal to this Court?
Article 34.4.3 of the Constitution provides:-
“The Supreme Court shall, with such exceptions and subject to such regulations as may be prescribed by law, have appellate jurisdiction from all decisions of the High Court, and shall also have appellate jurisdiction from such decisions of other courts as may be prescribed by law.”
In the ordinary course therefore, any decision of the High Court is subject to review by this court. It is not unusual for an appeal to come before this court which is solely confined to the issue of costs and the entitlement of an appellant in this regard is well settled (In Bonis: Vella v Morelli [1968] I.R. 11). On behalf of the first named respondent, Mr. Gerard Hogan, S.C. argues that the same constitutional provision makes it clear that the Oireachtas may restrict the appellate jurisdiction of the Supreme Court subject to the qualification in Article 34.4.4., which provides that:-
“No law shall be enacted excepting from the appellate jurisdiction of the Supreme Court cases which involve questions as to validity of any law having regard to the provisions of this constitution.”
He points out, correctly, that this is not a case involving the determination by the High Court of any constitutional issue and no such issue is before this court. He relied on the decision of this court in Minister for Justice v. Wang Zhu Jie [1993] 1 I.R. 426 to argue that the decision of Laffoy J., including her decision as to costs, was final and conclusive and immune from further appeal to this court.
In that case it was held that the provisions of s.52 of the Courts (Supplemental Provisions) Act, 1961 should be construed as effecting an exception from the absolute right of appeal provided for in Article 34.4.4. of the Constitution from decisions of the High Court to the Supreme Court. However, having read the judgments delivered by Finlay C.J. and McCarthy J. in that case I find nothing in either judgment which addresses the specific point under consideration in the instant case. I believe therefore the Court is to some degree in uncharted waters.
In my view the question can only be resolved by considering the precise wording of any statute which purports to limit the right of appeal to this court. Thus, by way of example, s.50 of the Planning & Development Act, 2000 provides at s.50(4)(f)(i):-
“The determination of the High Court of an application for leave to apply for judicial review, or of an application for judicial review, shall be final and no appeal shall lie from the decision of the High Court to the Supreme Court in either case, except with the leave of the High Court, which leave shall only be granted where the High Court certifies that its decision involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court.”
It seems to me, without in any way deciding an issue which was not before this Court, that the word “decision” of the High Court in s. 50 can be taken as including any determination of the issue of costs which forms part of its decision in the case. Similarly, section 42(8) of the Freedom of Information Act 1997 provides:-
“The decision of the High Court on an appeal or reference under this section shall be final and conclusive.”
Section 39 of the Courts of Justice Act 1936, which was re-enacted by section 48 of the Courts (Supplemental Provisions) Act 1961, provided as follows in relation to appeals to the High Court from the Circuit Court:-
“The decision of the High Court or of the High Court on Circuit on an appeal under this part of this Act shall be final and conclusive and not appealable.”
Again, I have no difficulty in construing these sections as altogether precluding any further appeal, even one confined to costs. By contrast, however, s.123(4) of the Residential Tenancies Act, 2004, which, if I may say so, is unsatisfactorily drafted in a number of respects, is much less clear. If the relevant sub-section simply referred to “the determination of the High Court on such an appeal” one could well argue that the decision of the High Court in relation to costs was incorporated in the determination. However, the wording contextualises the determination of the High Court by reference specifically “to the point of law concerned”.
The resolution of a point of law may on occasion compel a trial judge to determine a case in a particular way which may be contrary to the factual merits of the case. I am not saying any such situation arises in the instant case, but it is not difficult to imagine other cases where this could occur. In such a situation an appeal confined to the issue of costs might have significant merits.
For that reason, I think any statute which purports to altogether remove even a limited right of appeal on an issue such as costs should be so phrased as to make that intention clear. That is not to say that express wording in a statute is a prerequisite for this purpose, but rather that the overall intention that no further appeal should lie from any aspect of the decision of the High Court judge should be obvious from a reading of the provision in question.
In The People (Attorney General) v Conmey [1975] I.R. 34 this Court stated:-
“Any statutory provision which had as its object the excepting of some decisions of the High Court from the appellate jurisdiction of this (the Supreme) Court, or any particular provision seeking to confine the scope of such appeals within particular limits, would of necessity have to be clear and unambiguous.”
I would therefore allow the appeal on this jurisdictional point and direct that the matter be listed for further hearing on the merits.

 

Hennessy -v- PRTB

 

[2016] IEHC 174 (05 April 2016)

JUDGMENT of Ms. Justice Baker delivered on the 5th day of April, 2016.
1. The applicant is a tenant of residential premises situated at Capard, Bray Road, Cabinteely, Co. Dublin (“the Premises”) which he has occupied as tenant since 2006 with his wife and children. He brings this application by way of appeal from the determination of the Tenancy Tribunal (“the Tribunal”) made on the 19th June, 2015, and issued on 29th June, 2015, by which the Tribunal determined that a notice of termination served by his landlord was valid.

2. The respondent is the Private Residential Tenancies Board (“the PRTB”), the body established by the Residential Tenancies Act, 2004 (“the Act of 2004”) to determine disputes between landlords and tenants of residential premises.

3. The notice party was, on or around the 10th November, 2011, appointed receiver over certain assets of Durkan Homes, including the Premises, and served a notice of termination on the 11th June, 2014, specifying the date of the 3rd October, 2014, as the date on which the tenancy was said thereby to be determined.

4. This judgment is given in the appeal by the applicant pursuant to s.123 (3) of the Act of 2004, and is concerned with the net legal question of what must be contained in a valid notice of termination served under the provisions of the legislation, when a tenancy is terminated because a landlord intends to sell the premises the subject matter of the tenancy.

Background
5. It was accepted that the applicant has resided in the Premises with his family as tenant since 2006, and that he has the benefit of a so-called Part 4 tenancy. On the 1st June, 2012, the receiver served a notice of termination on the stated ground that he intended to sell the Premises. The dispute as to the validity of the notice of termination was submitted for dispute resolution before an adjudicator of the respondent, who on the 4th February, 2013, determined that the notice of termination was invalid. The frailty noted in that adjudication is also found in the notice of termination the subject matter of this appeal, namely that the notice of termination did not specifically say that the landlord intended to sell within three months of the termination of the tenancy.

6. The applicant entered into a new letting of the Premises on the 3rd April, 2013, and on the 11th June, 2014, the receiver served a notice of termination in respect of that tenancy, in identical or broadly identical terms to that the subject matter of the adjudication made on the 4th February, 2013.

7. The tenant submitted the dispute as to the validity of the second notice to the respondent, and on the 2nd December, 2014, an adjudicator determined that the notice was valid. The applicant lodged an appeal to that finding which was heard by the Tribunal on the 27th May, 2015, and it is from its determination of the 29th June, 2015, that this appeal is brought.
Grounds of appeal
8. The applicant claims that the Tribunal erred in law in its analysis of the provisions of ss.34 and 62 of the Act of 2004, and in coming to a determination that the termination notice dated the 11th June, 2014, was effective to terminate his tenancy in the Premises. In particular it is asserted that the notice served on the 11th June, 2014, was not valid and did not comply with the requirements of s.34 (a) (ii) of the Act and para. 3 of the Table to that section. There is also a plea that the notice is not valid in that it does not conform to the requirements of s.62 of the Act, and in particular ss.62 (1) (d) and 62 (1) (e).

9. Section 123(3) of the Act of 2004 provides for an appeal to the High Court on a point of law. It has been established in a number of cases, including in Tully v. Private Residential Tenancies Board and Anor [2014] IEHC 554 and my judgment in Doyle v. Private Residential Tenancies Board [2015] IEHC 724, that the High Court will show a degree of deference to the PRTB as an expert administrative tribunal which performs its functions with a high degree of expertise. However, the point raised by the applicant is a legal one in the pure sense, in that it is grounded on an argument that the statutory requirements as to the contents of a notice of termination were not met. I consider that the appeal raises an issue of law which may properly be determined by the High Court pursuant to s.123 (3) of the Act of 2004, and the question raised is a question of pure law involving a matter of statutory interpretation. I turn now to examine the requirements of the legislation.
The Act of 2004: the Part 4 tenancy
10. The Act of 2004 is set out in a number of Parts, each containing chapters of varying lengths. Part 4 sets out a scheme by which certain tenants of residential premises enjoy the benefit of a degree of statutory security of tenure. 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 Chapter 2 of that Part, primarily the right to continue in possession as tenant for the period of four years from the commencement of the tenancy, or until the expiration of a period of notice, whichever is the later. A tenancy continued by virtue of the provisions of s.28, after the initial period of six months, is described in s. 29 as a “Part 4 tenancy”, and a tenant holding under such a tenancy may remain in possession as tenant unless the tenancy is lawfully determined in accordance with the requirements of Chapter 3.

11. Chapter 3 of Part 4 identifies the extent of the protection offered to a person holding under a Part 4 tenancy, and provides that such tenancy may not be terminated by the landlord save in accordance with s.34, and for the reasons therein identified.

12. Essential to the scheme of the legislation is that a landlord may terminate a Part 4 tenancy for certain identified reasons, but may do so only by notice by which is cited one of these reasons said to justify termination. It is convenient to set out here the relevant parts of s.34:

“34.—A Part 4 tenancy may be terminated by the landlord—
(a) on one or more of the grounds specified in the Table to this section if—

(i) a notice of termination giving the required period of notice is served by the landlord in respect of the tenancy, and

(ii) that notice of termination cites as the reason for the termination the ground or grounds concerned and, in the case of paragraph 4, 5 or 6 of that Table, contains or is accompanied by the statement referred to in that paragraph.

13. The section contains a Table setting out the grounds on which the tenancy may be terminated within the statutory period of protection, the relevant part 3 of which reads as follows:
“3. 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.”
14. It will be apparent from the provisions of s.34, that a Part 4 tenancy cannot be terminated by a landlord save on notice given expressly for one of the reasons identified in s.34, and the relevant reason must be cited in the notice of termination. Further, a tenant is entitled to continue in occupation for the statutory period unless the landlord can show that one of the six grounds identified in the Table to s. 34 exists.
15. I turn now to consider the separate requirements of s.62.
Part 5 of the Act of 2004: the form of the notice of termination
16. Part 5 of the Act of 2004 sets out the formal and procedural requirements for termination of a tenancy. That Part makes provision for termination in respect of all residential tenancies, and not merely of those to which Part 4 applies and from which they derive the benefit of statutory security of tenure. Section 57 sets out as follows:

“57.—The purpose of this Part 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) one to which this Act applies but to which Part 4 does not apply (by reason of the operation of section 25), or

(b) one to which both this Act and that Part 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 or a further Part 4 tenancy).”

17. Section 62 is contained in Part 5 of the Act, and deals with notice periods and other procedural requirements to terminate a tenancy protected by the legislation. Section 62 sets out the requirements for a valid notice of termination as follows:
“(1) A notice of termination to be valid shall—
(a) be in writing,

(b) be signed by the landlord or his or her authorised agent or, as appropriate, the tenant,

(c) specify the date of service of it,

(d) be in such form (if any) as may be prescribed,

(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,

(f) specify the termination date, that is to say, the day (stating the month and year in which it falls)—

(i) on which the tenancy will terminate, and

(ii) on or before which (in the case of a termination by the landlord) the tenant must vacate possession of the dwelling concerned, (and indicating that the tenant has the whole of the 24 hours of the termination date to vacate possession),

and

(g) state that any issue as to the validity of the notice or the right of the landlord or tenant, as appropriate, to serve it must be referred to the Board under Part 6 within 28 days from the date of receipt of it.

(2) Subsection (1) is without prejudice to Chapter 4 and section 81 (3) (which specify additional requirements in respect of a tenancy that has been sub-let).”

18. As can be seen, s.62(1)(e) requires that if the duration of the tenancy is a period of more than 6 months, i.e. if the tenancy is a Part 4 tenancy and has the benefit of the protection contained in that Part, the reason for the termination must be stated.
The arguments
15. The notice of termination in respect of which this appeal is brought was served on the 11th June, 2014, and expired on the 3rd October, 2014. The relevant reason for the termination identified in the notice is as follows:

“I require vacant possession of the above property as I intend to sell the property”

19. The appellant argues that the notice of termination was defective in that it failed to expressly state that the landlord required vacant possession because he intended to enter into a contract for sale within three months of the date of termination. The landlord did sell the Premises and the evidence is that a sale closed in and around the 15th December, 2014. No issue arises in regard to that fact. No challenge was made to the length of notice or to the other contents of the notice of termination, and it is common case that the notice was in writing signed by the landlord and did specify the date of service and the termination date.

20. The appellant argues that the provisions of s.34 expressly provide that a notice of termination sent in reliance on the fact that the landlord intends to sell a premises must of a matter of statute state that he intends to sell within three months of termination, and that this construction is necessary to give full affect to the statutory protection afforded to residential tenancy under the legislation. It is argued in the circumstances that the notice was not in accordance with the requirements of ss.62 (1) (e) and 62 (1) (e) of the Act of 2004. It is asserted in simple terms that for a notice of termination to be valid for the purposes of terminating a Part 4 tenancy it was required as a matter of law not merely to state, as the notice in the present case did state, that the landlord intended to sell the premises, but that it must state that he intended to sell the premises within three months of the termination of the tenancy.

21. The respondent argues on the other hand that the requirements are directory and not mandatory, and that the notice served by the receiver in the present case sufficiently identified the reason for termination. The respondent argues that the reason given in the notice of termination was that identified in part 3 of the Table to s.34, and that the tenant could not have had any doubt that this was the reason justifying termination.

22. Counsel agree that the matter is one to be determined in accordance with the principles of statutory interpretation.
Discussion
23. The Act establishes the entire rights and obligations of the landlord and tenant of residential premises, and the common law requirements regarding the contents and form of a notice to quit have no application. The scheme is intended to make compliance a wholly statutory measure. This has the effect that from the point of view of statutory interpretation one must look first to the language in the relevant provisions, and then, if necessary for the purposes of interpretation, to the scheme or purpose of the Act and/or the relevant section or part.

24. It is clear that the intent of the Act of 2004, in particular the provisions of parts 4 and 5 are to provide a degree of security of tenure to a tenant of residential premises. This is also apparent from the long title of the Act of 2004 which recites the purpose of the Act as the wish to make provision :

“…in accordance with the exigencies of the common good, for a measure of security of tenure for tenants of certain dwellings.”
25. The security of tenure is not absolute, however, and a landlord may terminate a Part 4 tenancy for one of the reasons identified in s.34, by which is limited the power of a landlord to terminate, and these reasons justifying termination must be seen as the sole grounds on which termination can validly occur.
26. Laffoy J. in Canty v. Private Residential Tenancies Board [2007] IEHC 243 expressed the view that the provisions of the Act of 2004 for the valid termination of a Part 4 tenancy are “very technical and confusing”, and although she made that observation in the context of the requirements of a valid termination notice where there was an alleged non-payment of rent, her description seems to me to be appropriate in respect of the other provisions providing for termination now under consideration in this appeal. The matter does not lend itself to an obvious answer. The difficulty in interpretation is regrettable, as another other recited aim of the legislation was to provide an inexpensive and speedy means by which disputes between parties to a residential tenancy would be resolved, and the Board was established for that purpose. All disputes between landlords and tenants of residential premises are now dealt with before the Board.

27. There are a number of provisions in the legislation that must be considered. In the first place, by virtue of s.34 (a) (ii) a notice of termination served on the basis of three of the six statutory grounds must be accompanied by a written statement containing a high degree of specificity as to the factual nexus surrounding the matter giving rise to termination. Where the landlord requires the dwelling for his or her own occupation or that of a member of his or her family, where the landlord intends to renovate or refurbish the premises, or where the landlord intends to change the use of the premises, the Act expressly requires that the notice of termination be accompanied by a statement specifying certain matters therein set out. In the case where a landlord requires a dwelling for the purposes of his occupation or that of his family, the notice must be accompanied by a written statement stating the identity of the intended occupant and the expected duration of that occupation. A similar requirement that a written statement accompany a notice of termination in the case of the other two specified grounds is provided in the subsection.

28. The section does not require that in the case of a notice of termination served on the ground that the landlord intends to sell the premises, that the notice be accompanied by a statement setting out details of such proposed sale. Section 34 requires the notice to cite the reason for termination, and there is no requirement that in the case of a notice of termination served because the landlord intends to sell the premises that the notice of termination be accompanied by a statement setting out the particulars of the intended sale. The reason for this may be that whilst the landlord must intend to enter into an enforceable agreement for the transfer of the premises within three months of the notice of termination, he may not always have negotiated a contract for sale at the time of the service of the notice, and in most cases the contract will not yet be entered into. The legislature must have regarded it as unnecessary to require the landlord to identify the purchaser, the intended or agreed sale price, the auctioneer with carriage of sale, or other matters of fact surrounding the sale. It is sufficient if the notice states that the reason is the intention to sell within the statutory period. The omission of a requirement that details of the sale be specified in a written statement accompanying the notice of termination does not mean however, that the notice must not correctly state the reason for termination, and do so with sufficient accuracy and specificity.

29. Counsel for the respondent points to this difference as being a statutory basis justifying the conclusion that the section does not mandate a particular a form of notice of termination in the case of a tenancy that is terminated on account of an intention by the landlord to sell the premises. The legislation makes provision for the fixing by legislation or statutory instrument of a statutory form of notice, but none such statutory form has yet been promulgated, and the matter is free of authority.

30. I consider that counsel for the respondent is correct and the requirements of s.62 do not mandate a particular form of the notice of termination. Section 62 merely requires that the reason for the termination be identified. In the absence of such a prescribed form, the requirement is that the tenant be sufficiently informed of the reason for termination. The matter comes to be considered in the context of the dicta of Henchy J. in the State (Elm Developments Ltd.) v. An Bord Pleanála [1981] I.L.R.M. 108, where he distinguished between a strictly mandatory statutory requirement and a directory requirement, and that the latter is satisfied if the requirement is met in substance and not necessarily in accordance with the exact language of a provision. I adopt the following statement of Henchy J. in that decision as follows:

“Whether a provision in a statute or a statutory instrument, which on the face is obligatory (for example, by the use of the word “shall”) should be treated by the courts as truly mandatory or merely directory depends on the statutory scheme as a whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensible part of the statutory instrument, the court will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be excused.”
31. I consider that the requirements of s.62 are mandatory in the sense that a notice of termination is valid only if it is in compliance with the express requirements of that section, and states the reason for the termination. However, the fact that no particular form of notice is mandated, of itself is not sufficient to resolve the question. The interplay between the provisions of Part 5, as the source of the formal requirements of the content and form of a notice of termination, and Part 4 must also be considered and in particular whether Part 5 is to be seen as the sole repository of the statutory requirements with regard to the form of a notice of termination. At first reading it might seem to be the case, as argued by the respondent, that Part 4 is concerned with security of tenure, and Part 5 with the form of a notice, and I turn now to examine this proposition
32. It is clear that the purpose of s.34 is to identify a series of exceptions to the right of the tenant to remain in occupation as tenant for the statutory period of protection, but also to afford certain identified and limited grounds on which the tenancy may be terminated by the landlord.

33. Section 62 on the other hand sets out detailed provisions as to the contents of a notice of termination, and deals with the form of the notice, rather than the basis or reason for which a notice may be served and a tenancy terminated. Section 62(1)(e) provides that for the purpose of terminating a tenancy which has continued for a period of more than six months, a notice of termination must state the reason for the termination. Clearly, the reason must be one or more of the six reasons or grounds identified in s.34. If not, the notice of termination will not be effective to terminate the tenancy.

34. However, central to interpreting the scheme of the legislation seems to me to lie the fact that s.62 makes it clear that the requirements contained in Part 5 are in addition to and not in substitution for those in Part 4. Thus, in the case of a notice to terminate a Part 4 tenancy the notice must comply both with the requirements of s.62 and those in s.34, and in the case of termination by reason of an intention to sell, that reason must be stated.

35. Section 57(b) provides that the procedural requirements in Part 5 of the Act are in addition to the requirements contained in Part 4 with regard to the provisions relating to the termination of a Part 4 tenancy or a further Part 4 tenancy. Part 5 in other words deals with the notice periods and of the procedural requirements for determination of all residential tenancies, and Part 4 is specific to the requirements for the termination of a Part 4 tenancy, and the Act clearly identifies that in the case of the termination of a Part 4 tenancy, as in the present case, the requirements are cumulative. This has the affect that a landlord who seeks to terminate a Part 4 tenancy must comply with both ss.34 and 62.

36. This has the effect that s.62 is not the sole source of the requirements with regard to what is to be contained in a notice of termination, and while it has the appearance of being so, having regard in particular to the heading in Part 5 which identifies it as containing the procedural requirements for termination, it is clear from the provisions of s.57 (b) that a landlord may terminate a Part 4 tenancy only if he complies with the requirements of ss.34 and 62, and s.62 itself makes it clear that the requirements therein set out are in addition to those of s.34.

37. The reason must therefore be one of the six justifying reasons identified in the Table to s.34. In construing s.34, it cannot be ignored that the time frame of three months within which it is intended to sell is quite short, and in that context a landlord may terminate a tenancy on the grounds of an intended sale only if he has taken some preliminary steps to place a property on the market, as it would not always or perhaps usually be possible for an owner to predict that he or she would make an binding contract for sale within three months of placing the premises on the market. 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 validity be served. That in many cases will involve the requirement that the landlord has identified a potential purchaser, or commenced negotiations towards an eventual sale. Because of the short time frame of three months, it does not seem to me that the Oireachtas intended permitting termination of a Part 4 tenancy merely in anticipation of the commencement of the sale or advertising process. 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 a mere intention to sell, and requires a landlord to have as a matter of fact, and to state, that he intends to bind himself to a sale within three months of termination.

38. 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 difference in emphasis and meaning between the two statements of intent, and that difference is relevant and central to the protection afforded by the legalisation. An intention to sell simpliciter is not sufficient to terminate.
Civil and criminal sanction for abuse
39. I consider that certain assistance may be obtained in the provisions of s.74 of the Act which makes a criminal offence, the service of an invalid notice of termination in certain circumstances. This provision shows the extent of the seriousness with which the Oireachtas regarded the importance of providing security of tenure to the tenants whose tenancy was protected by the legislation.

40. Furthermore, Chapter 7 of Part 4 of the Act provides in s.54 that the parties to a residential tenancy agreement may not contract out of the terms of that Part. Section 56 provides for the award of damages for abuse of the termination procedure contained in s.34. Specifically in the case of ground 3, where the notice of termination is served because the landlord intends to sell the premises within three months of termination, there is provision for the award of damages to a tenant when that is not done within the period of three months, and the tenant has vacated the dwelling on foot of that notice, redress is sought before the Board which may, inter alia, make a direction that the landlord pay an amount by way of damages for the deprivation of the tenancy and the right of possession, and/or may make a direction that the tenant be permitted to resume possession of the premises. Again, these provisions make it clear that the Oireachtas considered the statutory protection to be important and that breach of the requirements sounds both in criminal and civil law.

41. While of course a tenant and a landlord can be presumed to know their respective rights under the tenancy agreement, the legislation is intended to be protective of the rights including the right of security of tenure of the tenant, and accordingly, I consider that the purpose of the legislation is fully served only if the notice of intention sets out that the landlord intends to sell within three months of the termination of the tenancy. An alternative approach could lead to potential abuse, in that a landlord may serve a notice identifying an intention to sell, and the tenant may not have a sufficient indication of the intention to sell within the statutory period to be watchful or mindful of the circumstances that might evolve following the tenant quitting possession on foot of the notice. If the notice does not identify that the intention is an intention to enter a binding contract for sale within three months then the legislative intention of the Act of 2004 taken as a whole, may be defeated. A tenant may not be for example in a position to know that the time frame in which such intention must be manifest is the short period of three months after termination. The purpose of the legislation is to permit a landlord to re-take possession only if he can show an immediate intention to bind himself to a sale within three months. In the absence of an express identification of such circumstances, it seems to me that certain risks exist that the tenant will not be alert to the entitlement to seek redress under s.56 of the Act.

42. Accordingly, for the legislation to be fully operative, and to achieve its stated aim of providing a measure of security of tenure for the tenants of residential premises, it seems to me that the notice is required to set out the ground as identified in the Table to s.34 namely, that the landlord intends within three months after the termination of this tenancy to enter an enforceable agreement for sale. Any other notice would merely express the intention of the landlord to sell, and such an intention is not sufficient to trigger the entitlement of the landlord to terminate. The reason for the termination is not that the landlord intends to sell, but that he intends to bind himself to a contract for sale within the statutory period of three months.

43. Accordingly, because I do not consider that the provisions of the legislation must be read such that s.62 is the sole source of the statutory requirement of the contents of the notice of termination, I consider that the notice of termination did not sufficiently identify the express ground on which the landlord relies, namely the ground identified in Part 3 of the Table to s.34. That ground does not entitle a landlord to terminate merely on account of the intention of the landlord to sell, but only should the intention be to bind himself to a contract to sell within the relatively narrow timeframe which is expressed in the legislation.

44. For these reasons, I consider that the determination of the tenancy tribunal was incorrect, and that as a matter of law a notice of termination served on the grounds that the landlord intends to sell the premises must identify that the landlord’s intention is an intention in accordance with the statutory scheme, namely an intention to sell within three months of the termination of the tenancy.

45. Therefore, I will allow the appeal and answer the question therein raised as follows: A notice of termination served by a landlord who intends to sell the premises the subject matter of a Part 4 tenancy must contain a statement of the grounds contained in the s.34, namely, that the landlord intends to enter into a binding contract for sale within three months of the termination of the tenancy and to enter into a enforceable agreement for the transfer for full consideration of his or her interest in the premises. Variations may arise if the landlord intends to sell a premises comprising an area greater than that the subject matter of the Part 4 tenancy but that factual situation did not arise in this case. The notice does not require to be expressed in the precise form of the statutory provisions, but the information cited must sufficiently identify that the intention is to conclude a contract for sale within three months.

 

 

 

McDermott v Pahor

 

Residential Tenancies Board
RESIDENTIAL TENANCIES ACT 2004
Report of Tribunal Reference No: TR0316-001701 / Case Ref No: 0116-23677
Appellant Landlord: Scott Mc Dermott
Respondent Tenant: Milos Pahor
Address of Rented Dwelling: 57 The Oaks, Maryborough Ridge, Douglas, Cork ,
Cork,
Tribunal: Rosemary Healy Rae (Chairperson)
Helen-Claire O’Hanlon, Aidan Brennan
Venue: Committee Room 1, Cork City Council, City Hall,
Anglesea Street, Cork
Date & time of Hearing: 20 May 2016 at 2:30
Attendees: John Powell (Appellant Landlords representative)
In Attendance: DTI Stenographer/Logger
1. Background:
On the 21st January 2016 the Tenant made an application to the Residential Tenancies
Board (“the RTB”) pursuant to Section 76 of the Act. The matter was referred to an
Adjudication which took place on the 12th February 2016. The Adjudicator determined
that:
The Respondent Landlord shall pay the total sum of €582 to the Applicant Tenant
within three days of the date of issue of this Order, being the portion of the security
deposit which was unjustifiably retained in respect of the tenancy of the dwelling at
57 The Oaks, Maryborough Ridge, Douglas, Cork.
Subsequently an appeal was received from the Landlord on the 24th March 2016. The
ground of the appeal was deposit retention and the appeal was approved by the Board on
the 1st April 2016.
The RTB constituted a Tenancy Tribunal and appointed Helen-Claire O’Hanlon, Aidan
Brennan and Rosemary Healy-Rae as Tribunal members pursuant to Section 102 and
103 of the Act and appointed Rosemary Healy-Rae to be the chairperson of the Tribunal
(“the Chairperson”).
On the 26th 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 20th May 2016 the Tribunal convened a hearing at Committee Room 1, Cork City
Council, City Hall, Anglesea Street, Cork.
2. Documents Submitted Prior to the Hearing Included:
1. RTB File
3. Documents Submitted at the Hearing Included:
None
4. Procedure:
The Tribunal was notified in advance that the Respondent Tenant would not be in
attendance at the hearing and that he was happy for the Tribunal to proceed to determine
the matter based upon his written submissions and related documentation.
The Chairperson asked the party present (the Respondent Landlord’s representative) to
identify himself and to identify in what capacity he was attending the Tribunal.
The Chairperson explained the procedure which would ordinarily be followed: that the
Tribunal was a formal procedure but that it would be held in as informal a manner as was
possible; that ordinarily the Landlord would be invited to present his case first; that there
would be an opportunity for cross-examination by the Tenant; that the Tenant would then
be invited to present his case, and that there would be an opportunity for crossexamination
by the Landlord. The Chairperson explained that following this, both parties
would ordinarily be given an opportunity to make a final submission.
The Chairperson stressed that all evidence is taken on oath or affirmation and is recorded
by the official stenographer present and she reminded the party 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 Appellant Landlord’s representative that following the
hearing that day, the Board would make a Determination Order which would be issued to
the parties and could be appealed to the High Court on a point of law only [pursuant to
section 123(3) of the 2004 Act].
5. Submissions of the Parties:
Evidence on behalf of the Appellant Landlord:
At the outset of the hearing, the Appellant Landlord’s representative made it clear to the
Tribunal that he would not be presenting any evidence to the Tribunal. He stated that he
was in attendance purely for the purposes of asking the Tribunal to determine the appeal
based upon the Landlord’s written submissions and related documentation.
In his appeal and written submissions, the Appellant Landlord submits that he is entitled
to retain a sum of €582 of the Respondent Tenant’s security deposit due to the alleged
early termination of the fixed term tenancy by the Tenant. The sum of €582 is comprised
of €492 to cover re-letting expenses and €90 in respect of the RTB registration fee.
The Letting Agreement dated the 9th January 2015, which was for a fixed term of 12
months, contains a break clause as follows:
“Note, that the tenant has an option to opt out of lease after 6 months as long as 28 days
notice is given”.
It is not in dispute that the Tenant gave notice of termination to the Landlord on the 18th
September 2015 that he would be terminating the tenancy with effect from the 31st
October 2015.
The Landlord submits that the tenancy was for a fixed term of 12 months and that the
Tenant terminated the tenancy before the expiry of the fixed term. The Landlord submits
that the wording of the break clause means that the Tenant had the option to opt out
“after 6 months” i.e. on the expiry of the 6 month period and not “at any time after 6
months”.
Evidence on behalf of the Respondent Tenant:
The Respondent Tenant’s submission is that the break clause means that he had an
option to terminate the tenancy at any time after 6 months so long as 28 days’ notice was
given. He highlights the fact that the break clause did not specify any particular date on
which the Tenant must terminate the tenancy. He states that the natural meaning of the
clause is that the Tenant was entitled to terminate at any point after 6 months and before
the expiry of the fixed term tenancy.
The Tenant requests that the balance of the security deposit of €582 be returned to him.
6. Matters Agreed Between the Parties
While, due to the non-attendance of the Tenant, no matters were actually agreed
between the parties, the Tribunal, having reviewed the various submissions finds as
follows:
1. The address of the dwelling is 57 The Oaks, Maryborough Ridge, Douglas, Cork.
2. The rent was €1,200 per month and a deposit of €1,200 was paid.
3. The tenancy commenced on the 9th January 2015 and ended on the 31st October
2015.
4. The Landlord returned a sum of €618 to the Tenant and retained a sum of €582 from
the deposit.
7. Findings and Reasons:
Having considered all of the documentation before it, on the balance of probabilities, the
Tribunal’s findings and reasons therefor are set out hereunder.
Finding No.1:
The tenancy was for a fixed term of 12 months from the 1st January 2015. The Tribunal
finds that, based on the terms of the letting agreement, the Tenant was entitled to
terminate the tenancy on the 31st October 2015 having given in excess of 28 days’
notice. The Tenant is entitled to the return of €582 being the amount of the deposit which
was unjustifiably retained by the Landlord.
Reasons:
Section 54(1) of the 2004 Act provides that no provision of any lease or tenancy
agreement, may operate to vary, modify or restrict in any way a provision Part 4 of the
Act. However, this is without prejudice to section 26, which allows more beneficial rights
for a tenant than those accorded by Part 4. Section 26 of the 2004 Act therefore allows
the parties to a tenancy agreement to come to their own agreement regarding security of
tenure provided the terms of the agreement are not less favourable to the tenant than the
rights the tenant would enjoy under the provisions of the Act itself.
The meaning of the break clause in the letting agreement under consideration is a matter
of construction. The Tribunal is of the view that the break clause in question does not
confine the Tenant to terminating the tenancy at the precise point in time when 6 months
of the tenancy had elapsed. The break clause provides for an opt out “after 6 months”.
This phraseology can only be interpreted as meaning that the Tenant could not terminate
the tenancy during the first 6 months of the tenancy, but could terminate it at any point
“after” the 6 month period had elapsed.
8. Determination:
Tribunal Reference TR0316-001701
In the matter of Scott Mc Dermott (Landlord) and Milos Pahor (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 €582 to the Respondent Tenant
within a period of 14 days from the date of issue of the Determination Order by the
Board, being the balance of the deposit of €1,200 unjustifiably retained by the
Appellant Landlord in respect of the tenancy of the dwelling at 57 The Oaks,
Maryborough Ridge, Douglas, Cork.
The Tribunal hereby notifies the Residential Tenancies Board of this Determination made on
26 May 2016.
Signed:
RosemaryHealy Rae Chairperson
For and on behalf of the Tribunal.

Derek O’Shaughnessy v Private Residential Tenancies Board

Reported In: [2014] 7 JIC 2904
Docket Number: [No. 177/MCA/2014]
Neutral Citation: [2014] IEHC 401
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Kearns P.Kearns P.
By notice of motion dated 15th May 2014 the appellant seeks an Order setting aside and discharging the Determination Order of the Chairperson of the Private Residential Tenancies Board (‘PRTB’) made on 4th April 2014.

The appellant is a tenant of a property at 25a Pembroke Gardens, Ballsbridge, Dublin 4. He began residing at this property on 21st September 2004. Strand Trust Limited is the landlord of the property. A dispute arose between the landlord and tenant and on 12th June 2013 the appellant submitted an application for dispute resolution services to the respondent in which he alleged that the landlord had served an invalid notice of termination. The landlord also made an application for dispute resolution services on 25th June 2013 which asserted that the appellant was overholding; was in rent arrears; had caused damage to the premises; and had caused the landlord further loss of rental income as it was unable to rent out an adjoining property due to the actions of the appellant.

An adjudication hearing took place on 20 September 2013. The adjudicator heard a number of jurisdictional arguments and concluded that the landlord did not fall within the category of “an approved body” according to s.6 of the Housing (Miscellaneous Provisions) Act1992. The adjudicator determined that the landlord had served a valid notice of termination; that the appellant was overholding; that the appellant failed to pay rent of €11,692.24; and had unlawfully changed the locks without the landlord’s consent. The appellant appealed this decision on 8th November 2013 on the grounds that the adjudicator had erred in finding that the landlord was not excluded from the provisions of the Residential Tenancies Act 2004.

A hearing before the tenancy tribunal took place on 10th February 2014. Evidence was given on behalf of the respondent landlord that an organisation named ‘Protestant Aid’ is a registered charity founded in 1836, while the landlord, Strand Trust Limited, was formed in 1988 and is a separate registered charity which happens to be administered from the same building. Strand Trust Limited owns a number of properties and provides accommodation to people who require it urgently, but it always expects to receive some rent. It was submitted that accommodation at the property at 25a Pembroke Gardens was arranged for the appellant following an approach from a concerned person. At the tribunal hearing the appellant stated that he understood the company which employed him as a verger with select vestry of St. Anne’s Church, Dawson Street to be ‘one and the same’ with Strand Trust Limited. It was submitted that the PRTB did not have jurisdiction to deal with the dispute as the 2004 Act does not apply to a dwelling let by an approved body for the purposes of s.6 of the 1992 Act.

The Tribunal, having heard submissions from both sides and considered documentary evidence, found that both parties intended for a landlord and tenant relationship to come into existence at the commencement of their relationship and that the dwelling was not let by a housing body approved for the purposes of s.6 of the 1992 Act. It was determined that the notice of termination was valid; that the appellant should vacate the premises within 7 days; and that the appellant pay rent arrears. A determination order issued to the parties on 22nd April 2014 which also notified the appellant of his right of appeal on a point of law pursuant to s. 123(3) of the Residential Tenancies Act 2004.

The appellant maintains that the PRTB does not have jurisdiction to determine the tenancy under the 2004 Act as the landlord is an approved housing body under s.6 of the 1992 Act. It is submitted that ‘Protestant Aid’, a charity which does appear in the list of approved bodies, is one and the same as ‘Strand Trust Limited’. Both entities share the same premises, use the same telephone line, and have a number of shared directors. The memorandum and articles of association of the landlord have been exhibited to highlight the degree of overlap between the two entities. It is submitted that the Chairman erred in law in deciding that the landlord was subject to the jurisdiction of the PRTB and in deciding without reasons and or evidence that the landlord was not an ‘approved body’ within the meaning of s.6 of the 1992 Act. An affidavit of Mr. John Gerard Cullen, solicitor for the appellant, states that a representative of Strand Trust Limited stated at the adjudication hearing that the landlord was an ‘approved housing body’.

It was submitted on behalf of the respondent that the appeal of the decision of the tenancy tribunal was not made within the statutory 21 day period from the date of issue of the determination order. However, as the appellant was only one day out of time the respondent waived its reliance on this point during the proceedings. Counsel for the respondent submits that ‘Protestant Aid’ is an approved body under s.6 of the 1992 Act and is listed as such in the Register of Approved Housing Bodies which was provided to the Court. However, Strand Trust Limited is not an approved body and the respondent submits that it cannot be considered as such until it has complied with the relevant procedure for obtaining approved status. It is therefore submitted that the Chairman did not err in his decision and that the determination order is valid.

The primary matter for this Court to determine is whether or not Stand Trust Limited is an approved body within the meaning of s.6 of the 1992 Act.

I have carefully considered the submissions of both parties and the relevant statutory framework and am satisfied that Strand Trust Limited and Protestant Aid are two distinct entities. While Protestant Aid is an approved housing body which appears as such in the Register of Approved Housing Bodies, Strand Trust Limited does not have such approved status. That the two bodies are administered from the same building, share a telephone line, perform similar and overlapping functions and have a number of shared directors does not make them ‘one and the same’ as submitted by the appellant. Strand Trust limited has not sought to obtain approved status under s.6 of the 1992 Act and the Court cannot circumvent the necessary procedural requirements for obtaining such approval. Any indication made to the adjudicator by a representative of Strand Trust Limited that it is an ‘approved body’, as asserted by the solicitor for the appellant, was clearly made in error – Strand Trust Limited is not an approved body and is not listed in the Register as such. The adjudicator was under no obligation to give further reasons for holding that Strand Trust Limited is not an approved housing body and the tribunal report provides comprehensive reasons for its findings.

For the reasons outlined above I am satisfied that the respondent did not err in its findings and therefore dismiss the appeal.

Paul Collins v Joan Cummins and Others

Reported In: [2015] 6 JIC 1003, 2015 WJSC-HC 5144
Neutral Citation: [2015] IEHC 354
Jurisdiction: Ireland
Court: High Court (Ireland)
Judge: Ms. Justice Murphy
10. Initial relations between the tenant and the receiver appear to have been cordial in that there was email contact in May 2012 with personnel from the receiver’s office apprising them of the sale of furniture and other items by the mortgagors. There was an amount of correspondence between May and September from the tenants then solicitors concerning the receivership and the validity of the tenancy agreement. In September 2012, the tenant’s then solicitors notified the receiver’s solicitors that the tenancy dispute was before the Private Residential Tenancy Board. The tenant’s solicitors further informed the receiver’s solicitors that the PRTB had been notified of the receiver’s involvement in the dispute and confirmed that they would liaise with the receiver in respect of the matter being adjudicated. The letter also provided the receiver’s solicitors with the PTRB reference number. The tenancy dispute was listed for hearing on 30 October, 2012 and the solicitor on behalf of the receiver attended at the hearing. It was advanced at the hearing on behalf of the receiver that the lease was null and void having regard to the provisions of the mortgage deed and in particular paragraph 7.19 which precluded the landlord form leasing the dwelling without first obtaining consent of the Bank. The receiver’s representative argued that the lease was null and void and of no legal effect on the basis that the landlord had not obtained the consent of the Bank in relation to the lease. According to the PRTB adjudication report, a discussion took place regarding the provisions of the Residential Tenancies Act 2004 and the implications of the view being expressed by the receiver for the conduct of legal relationships between landlords and tenants. The representative of the receiver acknowledged that such a view could create difficulties but stated that the requirement for consent was a fundamental term of the relationship between mortgagor and mortgagee and that without the appropriate consents there can be no lawful tenancy agreement. The matter was founded on the law of contract and the provisions of conveyancing legislation. The PRTB adjudicator found as follows:

i “(i) [He] did not accept the proposition put forward by the receiver that the failure of the landlord to obtain the consent of the Bank to the tenancy agreement was such a fundamental term of the mortgage as to render the tenancy agreement null and void and of no legal effect, and

(ii) [He] formed the opinion that the tenancy agreement between the applicant tenant and the respondent landlord as a valid tenancy for the purposes of the Act. Section 58(2) provides that the termination of a tenancy must be effected by means of a notice of termination that complies with the provisions of section 2 which sets out the requirements for a valid notice of termination.”

He went on to find that the notice of termination served by the landlord on 6 th April, 2012 did not comply with the requirements of section 62 of the 2004 Act and accordingly that the notice was invalid.

11. On the day following this hearing the receiver wrote to the tenant Paul Collins by letter dated 31 st October. The letter, headed “lease denied”, is an important letter in the context of these proceedings and the Court proposes to set it out in full.

“31 st October, 2012”

Lease Denied

Certain Assets of Franny Moore and Joan Cummins

(Receiver Appointed)

Dear Mr. Collins

I write to set out my position with regard to the occupation by you of Blackball House Stud, Bannow, Co. Wexford (“the Property”). You have claimed to be entitled to occupy the property pursuant to a Lease or Letting Agreement. The existence of a Lease or Letting Agreement is expressly denied by me and by KBC Bank Ireland plc (“the Bank”), the Mortgagee of the property.

Background

As you are aware, I was appointed Receiver over the property by the Bank by Deed of Appointment dated 11 th May, 2012.

My role as Receiver is to realise the Bank’s security and I act as agent of the borrowers, Mr. Franny Moore & Ms. Joan Cummins (“the Borrowers”) for the purpose of the realisation. Furthermore, as Receiver, there is a statutory obligation on me to achieve best price for the property.

Legal Position

Certain documents have been passed to me from you and from your solicitors, Compton Aylmer, during the period since my appointment as a Receiver. For the avoidance of doubt, I do not accept that the document purported to be a lease has any legal standing. It is clear that the Borrowers did not obtain bank consent to the purported lease, notwithstanding the fact that they signed to say “All necessary consents have been obtained to let the property”.

Having consulted with my solicitor and barrister on this case, I am advised that an action by the Bank and the Receiver to have the purported lease declared void would most likely be successful Papers have been drafted to bring the necessary High Court proceedings to have the purported lease declared void. If my action were to he successful, possession of the Properly would be granted to me.

Purported Investment

The position with regard to the monies which you say you have invested in the Property is unfortunate. There is no legal obligation on me to acknowledge your purported investment in the Properly. This is so by reason of the fact that I do not accept that the purported lease has any legal standing. Even if the purported lease had a legal standing, the decision to make what you allege is an investment in the Property lay with you. It was a matter for you to decide and was subject to risk, notwithstanding the existence of what you believe was an option to purchase which was to exist at the expiry of the purported lease. Clearly, you may not have been in a position to purchase the Property. In such circumstances, it would be reasonable for you to return the Property to the owner / landlord in its present condition.

PRTB

I note that you have lodged an action with the Private Residential Tenancies Board (“PRTB”) to declare the notice to quit served on you by the Borrowers prior to my appointment, as invalid. I further note that this action was heard by the PRTB yesterday.

Practical Position

Despite the legal position of this case, as set out above, and despite my advice that the purported lease would be void on a High Court application, I am prepared to adopt the following position in the hope of reaching an amicable solution.

I am willing to allow you and your family occupy the Property as Licensees until close of business on 16 th December 2013. This is subject to the following four conditions which must be satisfied:

· Vacant possession must be granted to me on 16 th December 2013, after which date neither you nor your family will be permitted to occupy the Property or enter on the Property;

· The Property must be returned to me in its present condition;

· bull; No further works are carried out by you to the Property, without my prior consent. This would include repairs, improvement or indeed any other works; and

· My selling agents and I will be given unimpeded access to the Property from 16 th September 2013, for the purpose of marketing and selling the Property.

The time period being offered is in my opinion, very reasonable, given that this is a period in excess of the term set out in the purported lease of 2 years.

This offer is being made without any admission whatsoever, that the purported letting agreement dated 1 st October 2011 is valid or that it is binding in any way on either myself or on the Bank. As I have made clear in the course of this letter, the existence of a valid lease or letting agreement is expressly denied and I do not accept that you have any entitlement to occupy the property as a Tenant.”

12. Thus, the receiver’s position remained that the lease was invalid. The receiver did not, however, either appeal the PRTB adjudication to the Tenancy Tribunal nor did he bring an appeal to the High Court on a point of law pursuant to s. 123(3) of the Residential Tenancies Act, 2004. The tenant, for his part, did not accept the terms of the open letter of offer and continued on in occupation of the demised premises. On 14 th December, 2012 the tenant, Paul Collins, issued a plenary summons. The original summons is dated 10 th December, 2012 and the general endorsement of claim carries the date of 10 th December, 2012. There is also a stamp from the Finance Directorate dated 10 th December, 2012. On the face of the summons, the original defendants were Joan Cummins, Francis (Franny) Moore and Neil Hughes the receiver of the mortgaged property. The summons shows that Neil Hughes has been scored out of the proceedings which are stated to have been amended on 13 th December, 2012. The date of issue of 10 th December removed and 14 th December inserted in its place. It appears from the document that the original intention was to sue the receiver as well as the original landlords but that the plaintiff changed his mind between 10 th and 14 th December and issued the summons solely against Joan Cummins and Francis Moore.

13. The general indorsement of claim seeks multiple reliefs including the right to possess the land for a period of two years of peaceful enjoyment uninterrupted and the right to exercise the clause of the lease that gives him the right to buy or extend the said lease at expiration. On 21 st December, 2012 the plaintiff Paul Collins registered the proceedings as a lis pendens against the folio in the land registry in Co. Wexford.

14. On the evidence before the Court, the next major event which occurred was the service by the receiver Neil Hughes on 25 th November, 2013 of a notice to quit. It is not clear on the evidence before the Court when the receiver abandoned his previous position, as set out in his letter of 31 st October, 2012, that the lease was null and void and adopted and endorsed the position that it was a valid lease within the meaning of the Residential Tenancies Act 2004. The letter of 25 th November, 2013, which flatly contradicts the letter of 31 st October, 2012, is as follows:

“Certain Assets of Franny Moore and Joan Cummins ”

(Receiver Appointed)

Notice of Termination of Tenancy of Residential Premises at Blackhall House Stud, Bannow, Co. Wexford (“the Premises”).

Dear Mr. Collins,

I note that you are a tenant of the Premises under a Residential Letting Agreement dated 1 st October 2011 between Joan Cummins and you (which I hereafter call the “Tenancy Agreement”) which tenancy commenced on 15 th December 2011.

Please note that I have been appointed by KBC Bank Ireland plc as the Receiver to the interest of Joan Cummins in the Tenancy Agreement by virtue of Deed of Appointment of Receiver dated 11 th May 2012.

Please note that the Tenancy Agreement of the Premises will terminate on the 28 th day of January 2014. You, the tenant, have the whole 24 hours of the 28 th January 2014 to vacate possession.

The reason for the service of this Notice of Termination of tenancy is that it is intended that I, acting as agent and attorney for Joan Cummins and Francis Moore, intend within 3 months after the termination of the Tenancy Agreement, to enter into a enforceable agreement for the transfer to another, for full consideration, of the whole of the relevant interest in the Premises.

Please note that any issue as to the validity of this notice or a right to serve same must be referred to the Private Residential Tenancy Board under Part 6 of the Residential Tenancies Act 2004 within 28 days of the date of receipt of it.

This notice is served on 25 th day of November 2013.”

The Court has evidence that this notice of termination was served by email by ordinary post, by registered post and by depositing a copy of same in the letter box outside the tenant’s front door. A photograph of that action has been exhibited in the affidavit of Jacinta Kelly, the member of the receiver’s staff who deposes as to service. As such, the receiver having accepted the validity of the lease and thus occupying the position of landlord, should have been served with notice of the proceedings. However, the tenant has averred that he never received this notice of termination. The registered letter came back uncalled for and the tenant has averred that the email account to which the notice was emailed is no longer active. He also makes the very serious allegation that the affidavit of Jacinta Kelly wherein she has deposed to depositing the notice in the letterbox of the tenant is false.

15. While he maintains he did not receive this notice of termination, coincidentally within days of its alleged service, the tenant reactivated the plenary proceedings which had lain dormant since their issuance in December 2012. On the 6 th December, 2013 he swore an affidavit for the purpose of having service of the plenary summons deemed good and an order to that effect was made by Peart J. on the 9 th December, 2013. On the 23 rd December, 2013 the plaintiff filed a notice of motion seeking judgment in default of appearance against Joan Cummins and Francis Moore. That motion for judgment in default of appearance was grounded on an affidavit which was filed in the High Court on 8 th January, 2014. The Court notes that there is no reference in the grounding affidavit to the fact that the defendants had mortgaged the property and that a receiver had been appointed on foot of that mortgage. The motion came on before Ryan J. on 3 rd February, 2014 when judgment for the liquidated sum of €72,864.78 was ordered in default of appearance together with the costs of the motion when taxed and ascertained. The court further ordered that the balance of the statement of claim, being €50,864.78, be adjourned for assessment before a judge without a jury. Liberty was given to the plaintiff to amend his statement of claim.

16. The statement of claim was amended on 13 th February, 2014 by the inclusion of a claim for specific performance of the contract of tenancy and of the option to buy or extend the lease contained in section 6 of the inventory and special conditions in that contract. Notice of trial was issued on the 13 th February, 2014 and the matter came on as an assessment on 3 rd April, 2014 before Cross J.. Having read the plenary summons, the pleadings and documents adduced in evidence, the order of the court dated 3 rd February, 2014 and the oral evidence of the plaintiff, the court declared:

2 “1. That the plaintiff is entitled to two years peaceful enjoyment of the property the subject matter of the within proceedings from 3 rd April, 2014 and;

2. That any rent owed by the plaintiff on the aforesaid property be set off against the sum of €72,864.78 due to the plaintiff from the first and second named defendants pursuant to the aforesaid judgment and order dated 3 rd February, 2014.”

The order was perfected on the same date.

17. The foregoing are the underlying circumstances in which the receiver seeks to set aside the orders of the High Court made on 3 rd February, 2014 giving judgment in the sum of €72,864.78 and on 3 rd April, 2014 declaring the plaintiff’s entitlement to two years quiet enjoyment of the demised premises.

The Law
18. Order 13 of the Rules of the Superior Courts provides for judgment in default of appearance. Having set out the various means by which judgment in default of appearance may be obtained, Ord. 13 r. 11 provides:-

“Where final judgment is entered pursuant to any of the proceeding rides of this order, it shall be lawful for the court to set aside or vary such judgment upon such terms as may be just.”

19. Rule 11 confers a wide discretion and does not specify the grounds upon which the discretion may be exercised. However, the authorities disclose two clear categories of case in which judgment in default of appearance may be set aside, namely:-

(i) Where judgment was granted irregularly or;

(ii) Where judgement was obtained regularly but the defendant has a good defence to the proceedings.

20. The significance of the distinction is stated by Clarke J in O ‘Tuama v. Casey [2008] IEHC 49:

“Thus, where judgment is obtained irregularly, the court will normally set aside the judgment without enquiring into the merits of the proposed defence. The logic of this decision is that the judgment should not have been obtained in the first place and a plaintiff who has obtained judgment irregularly should not have any benefit by reason of having obtained judgment in that fashion. On the other hand, where judgment is obtained regularly, the court may, nonetheless, be persuaded to set aside the judgment so as to permit the defendant to defend the proceedings but will only do so after considering the possible merits of the defence which the defendant would wish to put forward.”

As noted by Delaney and McGrath, Civil Procedure in the Superior Courts 3 rd Ed.,(Dublin, 2012) at paragraph 436:

“…the main difference between the two categories is that in the case of an irregular judgement, an affidavit of merits is not required but in the case of a regular judgment, it is essential. In addition the court is unlikely to impose terms for the setting aside of an irregular judgment, but may well do so, depending on the circumstances, where it sets aside a regular judgement.”

21. The first issue for the Court to determine therefore is whether or not the judgments obtained by the plaintiff were obtained irregularly. Should the Court conclude that the judgments were obtained regularly, the Court must then go on to consider whether or not the receiver has a defence on the merits such as would entitle him to an order setting aside the default judgments.

Regular or Irregular
22. It appears to the Court that the question of whether or not these judgments were regularly obtained turns on the question of whether or not the receiver was entitled to be served with or be given notice of the plaintiff’s proceedings. On behalf of the plaintiff it is contended that the receiver was well aware of his claims against the mortgagors/defendants from the correspondence sent by his then solicitors at the time of the appointment of the receiver. Furthermore, he states that a registration of a lis pendens on the folio in December 2012 was adequate notice of the fact of his claim. Counsel for the receiver contends that the plaintiff was at all times aware of his appointment as receiver; that he was aware that the receiver’s interests would be affected by the outcome of proceedings maintained against the mortgagors/defendants; that the receiver had been notified by the plaintiff’s previous solicitors and had been legally represented at the hearing before the PRTB in relation to the tenancy and on that basis he was entitled to notice. In supplemental submissions made by the receiver he advanced additional grounds upon which he was entitled to be served with the proceedings. Having initially denied the validity of the tenancy both at the PRTB hearing and afterwards in his letter of 31 st October, 2012 set out above, the receiver, not having appealed the adjudication of the PRTB nor having appealed on a point of law to the High Court, decided to treat the tenancy agreement as valid. This is evidenced by the notice of termination served on 25 th November, 2013 also set out above. By this action, the receiver stepped into the shoes of the defendants, Joan Cummins and Francis Moore and became the landlord. As such, he enjoyed all of the powers of Joan Cummins and Francis Moore in respect of the tenancy agreement, including the power to terminate the tenancy in their names. This he purported to do in accordance with the Residential Tenancy Act 2004.

23. In the Court’s view the service of this notice to quit changed everything. It signalled an acceptance by the receiver of the validity of the tenancy and thereby pursuant to the powers conferred on him by clause 9 of the mortgage deed he became the appropriate person to defend the proceedings.

24. It follows that the receiver, as agent of the mortgagors and as the person entitled to possession of the property and as the person who has validated the plaintiff’s tenancy agreement and as the person who has terminated the tenancy agreement, is the proper defendant to any proceedings concerning the lease.

25. The Court has evidence that the notice of intention to terminate the tenancy was served on the plaintiff. The evidence is that it was served by email, ordinary post, registered post (which was returned uncollected) and by placing a copy of the notice in the letterbox attached to the plaintiff’s property. The plaintiff states that he didn’t receive it. Even if that were so, it does not alter the fact that by endorsing the validity of the tenancy agreement the relationship between the plaintiff and the receiver was, as of the 25 th November, 2013 one of landlord and tenant. As landlord, the receiver was entitled, not merely to notice of the proceedings but to be served as a party to those proceedings. The Court has no doubt that had the notice of termination of 25 th November, 2013 been opened to the High Court when it deemed service good on the 9 th December, 2013 or when it gave judgment for a liquidated sum on 3 rd February, 2014 or when it gave a declaration as to the plaintiff’s rights on the 3 rd April, 2014, judgment would not have been entered for the plaintiff without proof of service on the receiver. The Court again notes that in the original proceedings issued by the plaintiff on the 10 th December, 2012 the receiver was named as a defendant to the proceedings but his name was subsequently deleted there from. In the particular circumstances of this case, where at the time judgments were obtained the de facto landlord was not a party to the proceedings, the judgments of the court were irregularly obtained. The Court therefore proposes to set aside the order deeming service good made on 9 th December, 2013; the order giving judgment in the sum of €72,864.78 along with the costs of the motion when taxed and ascertained, made 3 rd February 2013; and the order made on 4 th April, 2014 granting the plaintiff a declaration as to his entitlements as tenant.

26. The Court therefore observes, in relation to the second application, that is the application of the plaintiff in the original proceedings to set aside a purported appearance entered by the receiver in the name of the defendants on 28 th June, 2014. While such application is in effect rendered moot by the Court’s decision to set aside the orders in question, the Court notes that entering an appearance, where a judgment has already been obtained, is not provided for by the Rules of the Superior Courts. Such a memorandum of appearance is a nullity unless preceded by leave of the Court. On the evidence, no such leave was sought or obtained in this case.

27. On the basis of the foregoing the Court proposes to set aside the three orders referred to at paragraph 25 herein. If the plaintiff wishes to pursue his claim outside the ambit of the Landlord and Tenant process (and the Court expresses no view on his entitlement to do so) he will have to take such steps as are necessary to serve the proceedings on the receiver and thereafter matters will take their course in the normal way.