Canty v Private Residential Tenancies Board and another

• Jurisdiction: Ireland
• Judge: Miss Justice Laffoy,Mr. Justice William McKechnie
• Judgment Date: 08 August 2007
• Neutral Citation: [2007] IEHC 489,[2007] IEHC 243
• Court: High Court
• Docket Number: No. 519 SP/2006,[No. 1286 J.R./2006],2006 No. 519 SP
• Date: 08 August 2007

THE HIGH COURT

2006 No. 519 SP

IN THE MATTER OF THE RESIDENTIAL TENANCIES ACT, 2004

BETWEEN/

JACK CANTY

APPLICANT

AND

PRIVATE RESIDENTIAL TENANCIES BOARD

RESPONDENT

AND

DAVID CONNOLLY

LANDLORD

Abstract:

Landlord and Tenant law - Land law - Residential Tenancies Board - Special summons - Appeal against determination order - Error of law - Tenant - Lay litigant - Part 4 Tenancy - Non payment of rent - Overholding - Notice of termination - Whether Board erred in Law - Residential Tenancies Act 2004

: the applicant appealed against a decision of the respondent alleging an error of law on its part in the determination. The respondent found that the applicant was entitled to damages for a defective heating system, ordered the applicant to pay all arrears of rent. Notices of termination were served by the landlord prior to the final determination. Subsequently, in dispute resolution proceedings, the applicant was ordered to vacate the premises and the notices of termination were held to be valid.

Held by Laffoy J. that the respondent erred in law in determining that a valid notice of increase in rent had been served. The first notice of termination had not been validly served, while the second notice was valid. The determination order would be varied.

Reporter: E.F.

Judgment of Miss Justice Laffoy delivered on 8th August, 2007

The proceedings

1 These proceedings were initiated by special summons which issued on 27th October, 2006. In the special endorsement of claim the applicant claimed to be exercising a right of appeal under s. 123(3) of the Residential Tenancies Act, 2004 (the Act of 2004) against the determination order made by the respondent (the Board) on 6th October, 2006, seeking to vary or cancel the determination order on the basis of

2 "manifest error(s) of law committed in the purported adjudication thereof'.

3 The applicant has been a tenant of the notice party (the landlord) since 22nd September, 2004. Since April, 2005 the tenancy has been the subject of a series of dispute resolution processes under the Act of 2004. In addition to these proceedings,

4 the following matters are pending in the Superior Courts arising out of those processes:

1. (a) An appeal to the High Court from Cork Circuit Court in proceedings under s. 124 of the Act of 1924 to enforce an interim determination order made by the Board. That appeal was heard by de Valera J., who reserved judgment.

2. (b) An appeal to the Supreme Court against a decision of this Court (McKechnie J.) refusing the applicant's application for judicial review of an earlier determination order made by the Board.

5 The applicant appeared in person in these proceedings. The Board and the landlord were represented by solicitor and counsel. The documentation put before the court by the applicant and his submissions suggest that he has some legal background or training. However, it is noted that he refused to answer questions put to him by the Tenancy Tribunal which determined the matters which led to the determination order appealed against in these proceedings as to legal training or qualification. The applicant would appear not to have been at any disadvantage in representing himself. That notwithstanding, I propose dealing with the issues raised in these proceedings comprehensively, not least because by virtue of s. 123(4) of the Act of 2004 the determination of this Court on this appeal in relation to the points of law concerned is final and conclusive.

Factual and procedural background

6 I propose setting out first the terms of the tenancy agreement between the landlord and the applicant and then outlining the disputes which have been referred to the Board in relation to the tenancy and the Board's determinations in relation thereto.

Tenancy Agreement

7 By a tenancy agreement dated 24th September, 2004 (the tenancy agreement) the landlord agreed to let and the applicant agreed to take a property described as the dwelling house known as 14 The Orchard, Crosshaven, Co. Cork (the Property) and contents for the term of six months commencing on 22nd September, 2004 to 31st March, 2005 at a rent of Eur700 per calendar month, excluding part of September, 2004. It was provided that the rent would be payable on the first day of each month, the first payment to be made on 1st October, 2004.

8 The other provisions of the tenancy agreement which are relevant for present purposes are:

9 • Clause 7.1 which provided:

10 "Notice is hereby given that possession might be recovered by the [landlord] if applicable. That is that the [landlord] intends to occupy the Property as his … only or main home. This provision shall not be exercised by the [landlord] prior to 1 "November, 2005."

11 • Clause 8 which provided:

12 "This agreement may be extended by the [applicant] on 1st April, 2005 for a further period of 6 months without changes in terms, including maintenance of the agreed rent of Eur700 per calendar month. The agreement may be further extended by the [applicant] from 1st October, 2005 for a period of 12 months thereafter without changes in terms, excepting the right of the [landlord] to

13 increase the rental charge to a maximum of Eur750 per calendar month. In all circumstances, this agreement shall expire on 30th September, 2006 and the leasehold will be subject of renewed terms at that date."

2005 Disputes

14 In 2005 two matters in relation to the applicant's tenancy came before a Tenancy Tribunal (the Tribunal) comprising three members of the Board: Aideen Hayden, Anne Colley and Conn Murray. One matter, referred by the applicant, related to the alleged breach by the landlord of his obligations under the tenancy agreement, namely, a defect in the heating system of the Property resulting in a loss of amenity to the applicant. The other, referred by the landlord, related to overholding by the applicant following the expiry of a notice of termination given by the landlord and non-payment of rent. The two matters were heard together by the Tribunal on 27th January, 2006 in Cork. At the hearing the Tribunal found in favour of the applicant that his tenancy was for a period of greater than six months certain, holding that the applicant had a right to a "Part 4 tenancy", meaning a tenancy protected by Part 4 of the Act of the 2004. The Tribunal also made an interim direction, in accordance with s. 117 of the Act of 2004, in relation to payment by the applicant to the landlord of outstanding rent directing that there be paid to the landlord the following sums: Eur3,300 forthwith; Eur2,200 less a sum of Eur475, which it was agreed the applicant was entitled to deduct in respect of electricity consumption incurred by him, within 30 days; and Eur2,400 within 60 days. The foregoing direction was formalised in a determination order made by the Board on 15th February, 2006.

15 The Tribunal reconvened in Cork on 22nd February, 2006. On that occasion the Tribunal ruled in favour of the applicant that a purported notice of termination

16 served by the landlord's agent on the applicant on 18th March, 2005 did not comply with the relevant statutory requirement and, accordingly, was not valid.

17 Following the reconvened hearing, the final determination of the Tribunal was notified to the Board on 13th April, 2006. In that determination, the Tribunal found in favour of the applicant that he had suffered loss of amenity as a result of the defective heating system in the Property and awarded him Eur1,000 in respect thereof, against which there was to be set off the sum of Eur475 awarded by the interim direction referred to earlier. The Tribunal also ordered the applicant to pay all arrears of rent, amounting to the sum of Eur8,400 at the date of the resumed hearing (22nd February, 2006), all of the arrears to be paid within seven days of the making of the determination order. It also ordered that sums due and owing in respect of rent under the tenancy agreement should be payable as they fell due.

18 Those determinations were formalised in a determination order of the Board dated 19' April, 2006. In relation to the determination of the Tribunal in relation to the payment of further sums due and owing in respect of rent as they fell due, para. 4 of the determination order embodied a provision that the applicant should pay to the landlord

19 ". . . rent at the rate of Eur700 per month or part thereof from March, 2006 to the date of giving up possession of the dwelling."

2006 disputes

20 After the ruling was made by the Tribunal on 22nd February, 2006 that the purported notice of determination of 18th March, 2005 was invalid but before the final determination of the Tribunal of 13th April, 2006 was made and the determination order of the Board of 19th April, 2006 was handed down, on 23rd February, 2006 the landlord, by solicitor's letters of that date, notified the applicant as follows:

21 • Of an increase in the monthly rent to Eur750 per calendar month, that sum to be payable in respect of the month of March, 2006 and each succeeding month, given the fact that the applicant had remained in possession after 1st October, 2005.

22 • That the monthly rent due in respect of February, 2006 (Eur700) had not been paid, that no rent had been paid since the payment in respect of the month of February, 2005, and that eleven months' rent was then outstanding, totalling Eur7,700 and requesting immediate payment of the monies due and warning that the correspondence would be relied upon for the purposes of Parts 4 and 5 of the Act of 2004.

23 By letter dated 7th March, 2006 the solicitors on behalf of the landlord, referring to their letter of 23rd February, 2006 which requested payment of the rent then due to the landlord, at the time Eur7,700, and the fact that it had not been paid, pointed to the landlord's entitlement to terminate the tenancy for failure to pay rent if the...